EXHIBIT 10.9
EXECUTION COPY
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$420,000,000
REVOLVING CREDIT AGREEMENT
among
XXXXX LIMITED FINANCE CORP.,
as Borrower,
The Several Lenders from Time to Time Parties Hereto,
CREDIT LYONNAIS CHICAGO BRANCH,
as Co-Syndication Agent,
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH,
as Co-Syndication Agent,
and
JPMORGAN CHASE BANK,
as Administrative Agent
Dated as of March 1, 2002
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X.X. Xxxxxx Securities Inc., as Sole Advisor, Lead Arranger and Sole
Book Manager
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS
1.1 Defined Terms....................................................1
1.2 Other Definitional Provisions...................................14
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments.....................................................15
2.2 Procedure for Loan Borrowing....................................17
2.3 Commitment Fees, Utilization Fees, etc..........................18
2.4 Termination or Reduction of Commitments.........................18
2.5 Prepayments.....................................................19
2.6 Conversion and Continuation Options.............................19
2.7 Limitations on Eurodollar Tranches..............................20
2.8 Interest Rates and Payment Dates................................20
2.9 Computation of Interest and Fees................................20
2.10 Inability to Determine Interest Rate............................21
2.11 Pro Rata Treatment and Payments.................................21
2.12 Requirements of Law.............................................22
2.13 Taxes...........................................................23
2.14 Indemnity.......................................................25
2.15 Change of Lending Office........................................25
2.16 Replacement of Lenders..........................................26
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 No Change.......................................................26
3.2 Existence; Compliance with Law..................................26
3.3 Power; Authorization; Enforceable Obligations...................26
3.4 No Legal Bar....................................................27
3.5 Litigation......................................................27
3.6 No Default......................................................27
3.7 Ownership of Property; Liens....................................27
3.8 Taxes...........................................................27
3.9 Federal Regulations.............................................28
3.10 Investment Company Act; Other Regulations.......................28
3.11 No Subsidiaries.................................................28
3.12 Use of Proceeds.................................................28
3.13 Solvency........................................................28
3.14 Limited Purpose.................................................28
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness.....................................28
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Page
4.2 Conditions to Each Loan.........................................29
4.3 Condition to Initial Loan.......................................30
SECTION 5. COVENANTS
5.1 Affirmative Covenants...........................................30
5.2 Negative Covenants..............................................33
SECTION 6. EVENTS OF DEFAULT
SECTION 7. THE AGENTS
7.1 Appointment.....................................................37
7.2 Delegation of Duties............................................37
7.3 Exculpatory Provisions..........................................37
7.4 Reliance by Administrative Agent................................38
7.5 Notice of Default...............................................40
7.6 Non-Reliance on Agents and Other Lenders........................40
7.7 Indemnification.................................................40
7.8 Agent in Its Individual Capacity................................41
7.9 Successor Administrative Agent..................................41
7.10 Syndication Agents..............................................42
SECTION 8. MISCELLANEOUS
8.1 Amendments and Waivers..........................................42
8.2 Notices.........................................................43
8.3 No Waiver; Cumulative Remedies..................................43
8.4 Survival of Representations and Warranties......................44
8.5 Payment of Expenses and Taxes...................................44
8.6 Successors and Assigns; Participations and Assignments..........45
8.7 Adjustments; Set-off............................................47
8.8 Counterparts....................................................48
8.9 Severability....................................................48
8.10 Integration.....................................................48
8.11 GOVERNING LAW...................................................48
8.12 Submission To Jurisdiction; Waivers.............................48
8.13 Acknowledgements................................................49
8.14 Confidentiality.................................................49
8.15 WAIVERS OF JURY TRIAL...........................................50
8.16 No Bankruptcy Petition Against the Borrower; Liability of
the Borrower....................................................50
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SCHEDULES:
1.1 Commitments
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 & Xxxxxx
D-2 Form of Legal Opinion of Xxxxxxx, Xxxx and Xxxxxxx
E Form of Exemption Certificate
F Form of Commitment Increase Supplement
G Form of Additional Lender Supplement
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REVOLVING CREDIT AGREEMENT (this "AGREEMENT"), dated as of March 1,
2002, among XXXXX 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"), CREDIT LYONNAIS CHICAGO
BRANCH, as co-syndication agent, COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK INTERNATIONAL", NEW YORK BRANCH, as co-syndication agent
(together with Credit Lyonnais Chicago Branch, in such respective capacities,
the "SYNDICATION AGENTS"), and JPMORGAN CHASE BANK, 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 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 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 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 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.
"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).
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"ADDITIONAL LENDER SUPPLEMENT": as defined in Section 2.1(b)(ii).
"ADMINISTRATIVE AGENT": JPMorgan Chase Bank, 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.
"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 Agents and the
Administrative Agent.
"AGGREGATE EXPOSURE": with respect to any Lender at any time, an
amount equal to the amount of such Lender's Commitment then in effect or, if the
Commitments have been terminated, the amount 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.
"APPLICABLE MARGIN": the rate per annum set forth under the relevant
column on the Pricing Grid.
"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 the excess, if any, of (a) such Lender's Commitment then in effect OVER
(b) such Lender's Loans then outstanding.
"BAFC": Bunge Asset Funding Corp., a Delaware corporation, and its
successors and permitted assigns.
"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).
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"BORROWER": as defined in the preamble hereto.
"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.
"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 with respect to notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, such day is
also a day for trading by and between banks in Dollar deposits in the interbank
eurodollar market.
"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, during any 12 consecutive
calendar months (i) more than 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 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 50% of the combined voting power of
all classes of the common stock of such Person, shall not constitute an
acquisition hereunder.
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"CLOSING DATE": the date on which the conditions precedent set forth
in Section 4.1 shall have been satisfied, which date is March 1, 2002.
"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 principal amount not to exceed the amount set forth
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 $420,000,000.
"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.
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"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.
"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.
"DOLLARS" and "$": dollars in lawful currency of the United States.
"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 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
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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.
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"EURODOLLAR BASE RATE": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Telerate screen as of 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate screen (or otherwise on such
screen), the "EURODOLLAR BASE RATE" shall be determined by reference to such
other comparable publicly available service for displaying eurodollar rates as
may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is
offered Dollar deposits at or about 11:00 A.M., New York City time, two Business
Days prior to the beginning of such Interest Period in the interbank eurodollar
market where its eurodollar and foreign currency and exchange operations are
then being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein.
"EURODOLLAR LOANS": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"EURODOLLAR RATE": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
--------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"EURODOLLAR TRANCHE": the collective reference to Eurodollar Loans
the then current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall originally
have been made on the same day).
"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
7
average of the quotations for the day of such transactions received by JPMorgan
Chase Bank 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 guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"GUARANTOR": Xxxxx Limited, a Bermuda company, as guarantor pursuant
to the Guaranty Agreement.
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"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.
"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 equity derivatives, interest rate
protection agreements, foreign currency exchange agreements or other interest or
exchange rate hedging arrangements 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 Eurodollar Loan having
an Interest Period of three months or less, the last day of such Interest
Period, (c) as to any Eurodollar 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 Eurodollar Loan, the date of any repayment or prepayment made
in respect thereof.
"INTEREST PERIOD": as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar 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 Eurodollar 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 11:00 A.M., New York City time, on the date
that is three 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
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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 Eurodollar 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" 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.
"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
10
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.
"MASTER TRUST": the Bunge Master Trust created by the Pooling
Agreement.
"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": Xxxxx'x 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).
"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
11
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.
"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": 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 which ranks at
least PARI PASSU (in priority of payment) with the Loans.
"PARTICIPANT": as defined in Section 8.6(b).
"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.
"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 First Amended and Restated Pooling
Agreement, dated as of February 26, 2002, 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.
12
"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.
===============================================================================
Applicable
Margin for Applicable
Eurodollar Margin Commitment Utilization
Rating Loans for ABR Loans Fee Rate Fee Rate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Level I 0.75% 0.00% 0.15% 0.10%
-------------------------------------------------------------------------------
Level II 0.875% 0.00% 0.175% 0.10%
-------------------------------------------------------------------------------
Level III 1.00% 0.00% 0.225% 0.125%
-------------------------------------------------------------------------------
Level IV 1.375% 0.375% 0.30% 0.25%
===============================================================================
"PURCHASED LOANS": as defined in Annex X to the Pooling Agreement.
"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.
"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": any member of the Board of Directors, the
Chief Executive Officer, the President, the Chief Financial Officer or the
Treasurer of the Borrower or any other officer of the Borrower 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
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"SALE AGREEMENT": the First Amended and Restated Sale Agreement,
dated as of February 26, 2002 among Bunge Funding, as Buyer, Bunge Finance
Limited, a Bermuda
13
corporation, 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 Series 2002-1 Supplement to the
Pooling Agreement, dated as of February 26, 2002, among Bunge Funding, Bunge
Management Services, Inc., as servicer and the 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.
"SERVICER": Bunge Management Services, Inc., a Delaware corporation,
and any "Successor Servicer" (as defined in Annex X to the Pooling Agreement).
"SERVICING AGREEMENT": the Second Amended and Restated Servicing
Agreement, dated as of February 26, 2002 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
14
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.
"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
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 AGENTS": as defined in the preamble hereto.
"TERMINATION DATE": March 1, 2005.
"TOTAL COMMITMENTS": at any time, the aggregate amount of the
Commitments then in effect.
"TOTAL LOANS": at any time, the aggregate amount of the Loans of the
Lenders outstanding 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 Eurodollar
Loan.
"UNITED STATES": the United States of America.
"UTILIZATION FEE RATE": the rate per annum set forth under the
relevant column on the Pricing Grid.
"WITHDRAWAL LIABILITY": as defined in Part I of Subtitle E of Title
IV of ERISA.
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
15
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.
(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.
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 ("LOANS") to the
Borrower from time to time during the Commitment Period in an aggregate
principal amount at any one time outstanding which does not exceed the amount of
such Lender's Commitment. 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. The Loans
may from time to time be Eurodollar Loans or ABR Loans, 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 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
16
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 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
17
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 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 the Administrative Agent prior to 10:00 A.M., New York City
time, (a) three Business Days prior to the requested Borrowing Date, in the case
of Eurodollar Loans, or (b) on the requested Borrowing Date, in the case of ABR
Loans), specifying (i) the amount and Type of Loans to be borrowed, (ii) the
requested Borrowing Date and (iii) in the case of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths 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) and (y) in the case of Eurodollar Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the Administrative Agent shall promptly
notify each
18
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 12:00 Noon, New York City time, on the Borrowing
Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available at 12:00 Noon,
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, UTILIZATION FEES, ETC. (a) The Borrower agrees
to pay to the Administrative Agent for the account of each Lender a commitment
fee 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) If the average daily outstanding principal amount of the Loans
during any calendar quarter (or, if shorter, the period from the Closing Date
through March 31, 2002 or the period from the last day of the calendar quarter
immediately preceding the Termination Date through the Termination Date) equals
or exceeds 33% of the average daily Total Commitments in effect during such
period (or if the Commitments have terminated, the Total Commitments as in
effect immediately prior to such termination), the Borrower agrees to pay to the
Administrative Agent for the account of the Lenders a utilization fee on such
average daily outstanding principal amount during the period for which payment
is being made, computed at a rate per annum equal to the weighted average
Utilization Fee Rate for such period. The utilization fee in respect of each
period ending on the last day of a calendar quarter shall be payable in arrears
on the first Business Day of the following calendar quarter and on the
Termination Date.
(c) 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 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 outstanding
principal amount of the 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.
19
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 10:00
A.M., New York City time, three Business Days prior thereto, in the case of
Eurodollar Loans, and no later than 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 Eurodollar Loans or ABR
Loans; PROVIDED, that if a Eurodollar 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 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 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).
2.6 CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower may elect
from time to time to convert Eurodollar Loans 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 Eurodollar 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 Eurodollar 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 third 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 Eurodollar
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 Eurodollar 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 Eurodollar 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 such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
20
2.7 LIMITATIONS ON EURODOLLAR TRANCHES. Notwithstanding anything to
the contrary in this Agreement, all borrowings, conversions and continuations of
Eurodollar Loans and all selections of Interest Periods shall be in such amounts
and be made pursuant to such elections so that, (a) after giving effect thereto,
the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and (b) no more than fifteen Eurodollar Tranches
shall be outstanding at any one time.
2.8 INTEREST RATES AND PAYMENT DATES. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(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, utilization 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 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 a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements 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).
21
2.10 INABILITY TO DETERMINE INTEREST RATE. If prior to the first day
of any Interest Period:
(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 Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar 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 Eurodollar Loans requested to be made on the first day
of such Interest Period shall be made as ABR Loans, (y) any Loans that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans shall
be converted, on the last day of the then-current Interest Period, to ABR Loans.
Until such notice has been withdrawn by the Administrative Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Borrower have
the right to convert Loans to Eurodollar Loans.
2.11 PRO RATA TREATMENT AND PAYMENTS. (a) Each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee and any reduction of the Commitments of the Lenders shall be
made PRO RATA according to the Commitments of the Lenders.
(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 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 Dollars and in immediately
available funds. 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 Eurodollar 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 Eurodollar 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.
22
(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 Aggregate Exposure Percentage of the
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 Aggregate Exposure Percentage of such borrowing
available to the Borrower, and if such Lender's Aggregate Exposure Percentage of
such borrowing is not made available to the Administrative Agent by such Lender
within three 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 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 Eurodollar Loan made by it, or change
the basis of taxation of
23
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 Eurodollar 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 Eurodollar 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;
PROVIDED that the Borrower shall not be required to compensate a Lender pursuant
to this paragraph for any amounts incurred more than six months prior to the
date that such Lender notifies the Borrower of such Lender's intention to claim
compensation therefor; and PROVIDED FURTHER that, if the circumstances giving
rise to such claim have a retroactive effect, then such six-month period shall
be extended to include the period of such retroactive effect.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.13 TAXES. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions
24
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding net income taxes and franchise
taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent
or any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("NON-EXCLUDED TAXES") or Other Taxes
are required to be withheld from any amounts payable to the Administrative Agent
or any Lender hereunder, the amounts so payable to the Administrative Agent or
such Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-Excluded Taxes and
Other Taxes) interest or any such other amounts payable hereunder at the rates
or in the amounts specified in this Agreement, PROVIDED, HOWEVER, that the
Borrower shall not be required to increase any such amounts payable to any
Lender with respect to any Non-Excluded Taxes (i) that are attributable to such
Lender's failure to comply with the requirements of paragraph (d) or (e) of this
Section or (ii) that are United States withholding taxes imposed on amounts
payable to such Lender at the time such Lender becomes a party to this
Agreement, except to the extent that such Lender's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by
the Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure.
(d) Each Lender (or Transferee) that is not a "U.S. Person" as
defined in Section 7701(a)(30) of the Code (a "NON-U.S. LENDER") shall deliver
to the Borrower and the Administrative Agent (or, in the case of a Participant,
to the Lender from which the related participation shall have been purchased)
two copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI,
or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the form of
Exhibit E and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date
25
such Participant purchases the related participation). In addition, each
Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender. Each
Non-U.S. Lender shall promptly notify the Borrower at any time it determines
that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted by the
U.S. taxing authorities for such purpose). Notwithstanding any other provision
of this paragraph, a Non-U.S. Lender shall not be required to deliver any form
pursuant to this paragraph that such Non-U.S. Lender is not legally able to
deliver.
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the Borrower
is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate, PROVIDED that such Lender is
legally entitled to complete, execute and deliver such documentation and in such
Lender's judgment such completion, execution or submission would not materially
prejudice the legal position of such Lender.
(f) The agreements in this Section shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.14 INDEMNITY. The Borrower agrees to indemnify each Lender for,
and to hold each Lender harmless from, any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment of or conversion from Eurodollar Loans after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurodollar Loans on a day that is not the last day of
an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest that would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) OVER (ii) the amount of interest (as
reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. A certificate as to any
amounts payable pursuant to this Section submitted to the Borrower by any Lender
shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.15 CHANGE OF LENDING OFFICE. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.12 or 2.13(a)
with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy
26
considerations of such Lender) to designate another lending office for any Loans
affected by such event with the object of avoiding the consequences of such
event; PROVIDED, that such designation is made on terms that, in the sole
judgment of such Lender, cause such Lender and its lending office(s) to suffer
no economic, legal or regulatory disadvantage, and PROVIDED, FURTHER, that
nothing in this Section shall affect or postpone any of the obligations of the
Borrower or the rights of any Lender pursuant to Section 2.12 or 2.13(a).
2.16 REPLACEMENT OF LENDERS. The Borrower shall be permitted to
replace any Lender that (a) requests reimbursement for amounts owing pursuant to
Section 2.12 or 2.13(a) or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution; PROVIDED that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement,
(iii) prior to any such replacement, such Lender shall have taken no action
under Section 2.15 so as to eliminate the continued need for payment of amounts
owing pursuant to Section 2.12 or 2.13(a), (iv) the replacement financial
institution shall purchase, at par, all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (v) the Borrower shall
be liable to such replaced Lender under Section 2.14 if any Eurodollar Loan
owing to such replaced Lender shall be purchased other than on the last day of
the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 8.6 (provided that the
Borrower shall be obligated to pay the registration and processing fee referred
to therein), (viii) until such time as such replacement shall be consummated,
the Borrower shall pay all additional amounts (if any) required pursuant to
Section 2.12 or 2.13(a), as the case may be, and (ix) any such replacement shall
not be deemed to be a waiver of any rights that the Borrower, the Administrative
Agent or any other Lender shall have against the replaced Lender.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
3.1 NO CHANGE. Since December 31, 2001, there has been no
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
3.2 EXISTENCE; COMPLIANCE WITH LAW. The Borrower (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the power and authority, and the legal
right, to own and operate its property and to conduct the business in which it
is currently engaged, (c) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership or operation of
property or the conduct of its business requires such qualification and (d) is
in compliance with all Requirements of Law except to the extent that the failure
to comply therewith could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.
3.3 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The Borrower has
the power and authority, and the legal right, to make, deliver and perform the
Loan Documents to
27
which it is a party and to obtain Loans hereunder. The Borrower has taken all
necessary organizational action to authorize the execution, delivery and
performance of the Loan Documents to which it is a party and to authorize the
Loans on the terms and conditions of this Agreement. No consent or authorization
of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the Loans hereunder
or with the execution, delivery, performance, validity or enforceability of this
Agreement or any of the Loan Documents to which the Borrower is a party, except
consents, authorizations, filings and notices described in SCHEDULE 3.3, which
consents, authorizations, filings and notices have been obtained or made and are
in full force and effect. Each Loan Document to which the Borrower is a party
has been duly executed and delivered on behalf of the Borrower. This Agreement
constitutes, and each other Loan Document to which the Borrower is a party, upon
execution will constitute, a legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.4 NO LEGAL BAR. The execution, delivery and performance of this
Agreement and the other Loan Documents to which the Borrower is a party, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or any Contractual Obligation of the Borrower and will not
result in, or require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation. No Requirement of Law or Contractual Obligation
applicable to the Borrower could reasonably be expected to have a Material
Adverse Effect.
3.5 LITIGATION. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge
of the Borrower, threatened by or against the Borrower or against any of its
properties or revenues (a) with respect to any of the Loan Documents to which
the Borrower is a party or any of the transactions contemplated hereby or
thereby, or (b) that could reasonably be expected to have a Material Adverse
Effect.
3.6 NO DEFAULT. The Borrower is not in default under or with respect
to any of its Contractual Obligations in any respect that could reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
3.7 OWNERSHIP OF PROPERTY; LIENS. The Borrower has good title to all
its property, and none of such property is subject to any Lien.
3.8 TAXES. The Borrower has filed or caused to be filed all federal,
state and other material tax returns that are required to be filed and has paid
all taxes shown to be due and payable on said returns or on any assessments made
against it or any of its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority (other than
any the amount or validity of which are currently being contested in good faith
by appropriate proceedings and with respect to which reserves in conformity with
GAAP have been
28
provided on the books of the Borrower); no tax Lien has been filed, and, to the
knowledge of the Borrower, no claim is being asserted, with respect to any such
tax, fee or other charge.
3.9 FEDERAL REGULATIONS. No part of the proceeds of any Loans will
be used for "buying" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or for any purpose that violates the provisions of the
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1, as applicable, referred to in Regulation U.
3.10 INVESTMENT COMPANY ACT; OTHER REGULATIONS. The Borrower is not
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
3.11 NO SUBSIDIARIES. The Borrower has no direct or indirect
Subsidiaries.
3.12 USE OF PROCEEDS. The proceeds of the Loans shall be used solely
to make advances under the Series 2002-1 VFC.
3.13 SOLVENCY. Each Loan Party is, and after giving effect to the
incurrence of all Indebtedness and obligations being incurred in connection
herewith and therewith will be and will continue to be, Solvent.
3.14 LIMITED PURPOSE. The Borrower is a single purpose entity that
was formed for the sole purpose of (i) holding the Series 2002-1 VFC, (ii)
borrowing under the Commitments hereunder and (iii) incurring Pari Passu
Indebtedness. Other than cash derived from distributions of Series 2002-1
Accrued Interest to the Borrower under the Series 2002-1 VFC, which cash shall
be used by the Borrower solely to make interest payments under this Agreement
and under any Pari Passu Indebtedness and to pay for its reasonable operating
expenses, the Series 2002-1 VFC is the sole asset of the Borrower.
SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS TO EFFECTIVENESS. This Agreement shall become
effective on the first day on which all of the following conditions have been
satisfied:
(a) CREDIT AGREEMENT; GUARANTY AGREEMENT. The Administrative Agent
shall have received (i) this Agreement executed and delivered by the
Administrative Agent, the Borrower and each Person listed on SCHEDULE 1.1
and (ii) the Guaranty Agreement, executed and delivered by the Guarantor.
(b) SERIES 2002-1 VFC. The conditions set forth in Section 8.01 of
the Series 2002-1 Supplement shall have been satisfied, the Administrative
Agent shall have received copies of each of the agreements, instruments,
documents, certificates and
29
opinions referred to therein and the Series 2002-1 VFC shall have been
issued and delivered to the Borrower pursuant to the Series 2002-1
Supplement.
(c) FEES. The Lenders and the Administrative Agent shall have
received all fees required to be paid, and all expenses for which invoices
have been presented (including the reasonable fees and expenses of legal
counsel), on or before the Closing Date.
(d) CLOSING CERTIFICATE; GOOD STANDING CERTIFICATES. The
Administrative Agent shall have received (i) a certificate of the
Borrower, dated the Closing Date, substantially in the form of Exhibit B,
with appropriate insertions and attachments satisfactory in form and
substance to the Administrative Agent, including (A) the certificate of
incorporation of the Borrower, certified by the relevant authority of the
jurisdiction of organization of the Borrower, and the bylaws of the
Borrower, (B) Board of Directors resolutions in respect of the Loan
Documents to which the Borrower or the Guarantor, as applicable, is a
party, and (C) incumbency certificates with respect to the Borrower and
the Guarantor and (ii) a good standing certificate (or similar
certificate) for each of the Borrower and the Guarantor from their
respective jurisdictions of organization.
(e) LEGAL OPINIONS. The Administrative Agent shall have received the
following executed legal opinions:
(i) the legal opinion of Winston & Xxxxxx, counsel to the
Borrower and New York counsel to the Guarantor, substantially in the
form of Exhibit D-1; and
(ii) the legal opinion of Xxxxxxx, Xxxx and Xxxxxxx, Bermuda
counsel to the Guarantor, substantially in the form of Exhibit D-2.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
(f) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct on and as of such date.
(g) COMPLIANCE WITH LAWS. The Administrative Agent shall have
received evidence reasonably satisfactory to it that the business
conducted and proposed to be conducted by the Borrower is in compliance
with all applicable laws and regulations and that all registrations,
filings and licenses and/or consents required to be obtained by the
Borrower in connection therewith have been made or obtained.
(h) NO SERIES 2002-1 EARLY AMORTIZATION EVENT OR POTENTIAL SERIES
2002-1 EARLY AMORTIZATION EVENT. There shall exist no Series 2002-1 Early
Amortization Event or Potential Series 2002-1 Early Amortization Event.
4.2 CONDITIONS TO EACH LOAN. The agreement of each Lender to make
any Loan requested to be made by it on any date (including its initial Loan) is
subject to the satisfaction of the following conditions precedent:
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(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct on and as of such date as if made on and as of
such date.
(b) NO DEFAULT. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Loans
requested to be made on such date.
(c) NO SERIES 2002-1 EARLY AMORTIZATION EVENT OR POTENTIAL SERIES
2002-1 EARLY AMORTIZATION EVENT. There shall exist no Series 2002-1 Early
Amortization Event or Potential Series 2002-1 Early Amortization Event.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such Loan that the conditions
contained in this Section 4.2 have been satisfied.
4.3 CONDITION TO INITIAL LOAN. Upon the earlier to occur of (i) the
making of the initial Loan under this Agreement and (ii) 5:00 p.m. on the
Business Day following the Closing Date, the Borrower shall provide to the
Administrative Agent evidence reasonably satisfactory to the Administrative
Agent that Bunge North America, Inc., a Delaware corporation, has, prior to or
simultaneously with the making of such initial Loan (if applicable), terminated
its existing bilateral credit agreement commitments aggregating $105,000,000 and
has repaid all loans outstanding thereunder. Each Lender hereunder that is also
a lender under any such bilateral credit agreement hereby waives any notice of
prepayment and/or termination of commitment under such bilateral credit
agreement; PROVIDED that the Borrower agrees to indemnify each such Lender in
accordance with the terms of such bilateral credit agreement for any loss or
expense which such Lender may sustain or incur as a consequence of the making of
a prepayment of any Eurodollar loans on a day that is not the last day of an
Interest Period with respect thereto.
SECTION 5. COVENANTS
While this Agreement is in effect (i.e., until all indebtedness and
other amounts payable by the Borrower hereunder have been paid in full and the
Lenders no longer have any Commitments hereunder), the Borrower agrees that:
5.1 AFFIRMATIVE COVENANTS. The Borrower shall:
(a) Provide the Administrative Agent all information that the
Administrative Agent may reasonably request in writing concerning the
business of the Borrower within a reasonable period of time considering
the nature of the request; PROVIDED that with respect to any information
relating to an annual audited report, the same may be delivered within 90
calendar days after the end of the Borrower's fiscal year.
(b) Furnish or cause to be furnished to the Administrative Agent in
sufficient number for each Lender, copies of all (i) Daily Reports
prepared by the Servicer pursuant to Section 5.1(n), (ii) notices of
Series 2002-1 Early Amortization Events and (iii) Monthly Settlement
Statements; PROVIDED that the documents set forth in clauses (i) and
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(iii) above shall be provided only upon the request of the Administrative
Agent or the Required Lenders.
(c) Take all actions necessary to ensure that all taxes and other
governmental claims in respect of the Borrower's operations and assets are
promptly paid when due, except those contested in good faith.
(d) Comply with all Requirements of Law except where the failure to
so comply would not reasonably be expected to have a Material Adverse
Effect on its ability to perform its obligations under the Loan Documents.
(e) Advise the Administrative Agent of the occurrence of each
Default or Event of Default as promptly as practicable after the Borrower
becomes aware of any such Default or Event of Default.
(f) Beginning with the fiscal year commencing in 2002, furnish to
the Administrative Agent in sufficient number for each Lender as soon as
available, but in any event within ninety (90) days after the end of each
fiscal year of the Borrower, audited financial statements consisting of
the balance sheet of the Borrower as of the end of such year and the
related statements of income and retained earnings and statements of cash
flow for such year, setting forth in each case in comparative form the
corresponding figures for the previous fiscal year (PROVIDED that
comparative figures shall not be required with respect to such financial
statements delivered at the end of the Borrower's fiscal year ending in
2002), certified by independent certified public accountants satisfactory
to the Administrative Agent to the effect that such financial statements
fairly present in all material respects the financial condition and
results of operations of the Borrower in accordance with GAAP consistently
applied.
(g) Beginning with the fiscal year commencing in 2002, furnish to
the Administrative Agent as soon as available but in any event within
forty-five (45) days after the end of each of the first three quarters for
each fiscal year of the Borrower, unaudited financial statements
consisting of a balance sheet of the Borrower as at the end of such
quarter and a statement of income and retained earnings for such quarter,
setting forth (in the case of financial statements furnished for calendar
quarters subsequent to the first full calendar year of the Borrower) in
comparative form the corresponding figures for the corresponding quarter
of the preceding fiscal year.
(h) Furnish, or cause to be furnished, to the Administrative Agent
together with the financial statements required pursuant to clause (f) and
clause (g) a certificate of a Responsible Officer of the Borrower stating
(i) that the attached financial statements have been prepared in
accordance with GAAP and accurately reflect the financial condition of the
Borrower, (ii) that the Borrower is in compliance with Section 5.1(j) and
(iii) all information and calculations necessary for determining
compliance by the Borrower with Section 5.2(a) as of the last day of the
fiscal quarter or fiscal year of the Borrower, as the case may be.
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(i) (i) Except as otherwise permitted by the Loan Documents,
preserve, renew and keep in full force and effect its corporate existence
and (ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business.
(j) Loan all of the proceeds from the Loans hereunder, and the
proceeds of any Pari Passu Indebtedness, to Bunge Funding pursuant to the
Series 2002-1 VFC.
(k) Give notice to the Administrative Agent:
(i) promptly and in any event within 10 days after the
Borrower or any ERISA Affiliate knows or has reason to know that any
ERISA Event has occurred, a statement of the Chief Financial Officer
of the Borrower or such ERISA Affiliate describing such ERISA Event
and the action, if any, that the Borrower or such ERISA Affiliate
has taken and proposes to take with respect thereto;
(ii) promptly and in any event within two (2) Business Days
after receipt thereof by the Borrower or any ERISA Affiliate, copies
of each notice from the PBGC stating its intention to terminate any
Plan or to have a trustee appointed to administer any Plan; and
(iii) promptly and in any event within five (5) Business
Days after receipt thereof by the Borrower or any ERISA Affiliate
from the sponsor of a Multiemployer Plan, copies of each notice
concerning (A) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (B) the reorganization or termination, within
the meaning of Title IV of ERISA, of any such Multiemployer Plan or
(C) the amount of liability incurred, or that may be incurred, by
the Borrower of any ERISA Affiliate in connection with any event
described in clause (A) or (B) above.
(l) On each day after 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), give the notice contemplated by Section 2.06
of the Series 2002-1 Supplement, such notice to specify an amount equal to
the lesser of (i) the funds on deposit in the Series 2002-1 Collection
Subaccount on such day and (ii) the outstanding principal amount of the
Loans (with accrued interest thereon) and all other amounts owing under
this Agreement and the other Loan Documents.
(m) At the direction of the Administrative Agent or the Required
Lenders, exercise its right under Section 8.14 of the Pooling Agreement to
direct the trustee under the Bunge Master Trust when the Lenders are
affected by the conduct of any proceeding or the exercise of any right
conferred on the trustee under the Bunge Master Trust.
(n) On each Business Day on which a Loan is made, cause the Servicer
to submit a Daily Report to the Borrower and to the trustee under the
Bunge Master Trust no later
33
than 12:00 (Noon), New York City time, setting forth the information
required by Section 4.01 of the Servicing Agreement.
5.2 NEGATIVE COVENANTS. The Borrower will not:
(a) Permit the Series 2002-1 Allocated Loan Amount to be less than
the sum of (i) the Total Loans hereunder and (ii) all other Pari Passu
Indebtedness.
(b) Contract for, create, incur, assume or suffer to exist any Lien,
security interest, charge or other encumbrance of any nature upon any of
its property or assets, including without limitation the Series 2002-1
VFC, whether now owned or hereafter acquired.
(c) Create, incur, assume or suffer to exist any Indebtedness,
whether current or funded, or any other liability except Permitted
Indebtedness.
(d) Except as contemplated by the Loan Documents or the Transaction
Documents, make any loan or advance or credit to, or guarantee (directly
or indirectly or by an instrument having the effect of assuring another's
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any
assets, stock, obligations or securities of, or any other interest in, or
make any capital contribution to, any other Person.
(e) Enter into any merger, consolidation, joint venture, syndicate
or other form of combination with any Person, or sell, lease or transfer
or otherwise dispose of any of its assets or receivables or purchase any
asset, or engage in any transaction which would result in a Change in
Control of the Borrower.
(f) Enter into or be a party to any agreement or instrument other
than the Loan Documents, the Transaction Documents to which it is a party,
and any agreement or instrument related to the incurrence of Pari Passu
Indebtedness.
(g) Enter into or be a party to any agreement or instrument related
to the incurrence of Pari Passu Indebtedness that does not include a
provision substantially to the effect set forth in Section 8.16.
(h) Except as permitted by any Transaction Document, make any
expenditure (by long-term or operating lease or otherwise), excluding
those relating to foreclosure, for capital assets (both realty and
personalty), unless such expenditure is approved in writing by the
Administrative Agent.
(i) Engage in any business or enterprise or enter into any material
transaction other than as contemplated by the Loan Documents and the
Transaction Documents.
(j) Amend its certificate of incorporation or bylaws without the
prior written consent of the Administrative Agent.
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(k) Amend, supplement, waive or modify, or consent to any amendment,
supplement, waiver or modification of, any Transaction Document except in
accordance with the provisions of this Section 5.2(k). Any provision of
any Transaction Document may be amended, waived, supplemented, restated,
discharged or terminated without the consent of the Administrative Agent
or the Lenders; PROVIDED such amendment, waiver, supplement or restatement
does not (A) render the Series 2002-1 VFC subordinate in payment to any
other Series under the Bunge Master Trust, (B) reduce in any manner the
amount of, or delay the timing of, distributions which are required to be
made on the Series 2002-1 VFC or (C) change the definition of or the
manner of calculating the interest of the Borrower; and PROVIDED, FURTHER,
that the Administrative Agent shall have received prior notice thereof
together with copies of any documentation related thereto. Any amendment,
waiver, supplement or restatement of a provision of a Transaction Document
(including any exhibit thereto) of the type described in clauses (A), (B)
or (C) above shall require the written consent of the Administrative Agent
acting at the direction of the Required Lenders.
(l) Grant any powers of attorney to any Person for any purposes
except where permitted by the Loan Documents.
(m) Increase the Series 2002-1 Invested Amount during any Payment
Period.
(n) Take any action which would permit the Servicer to have the
right to refuse to perform any of its respective obligations under the
Servicing Agreement.
SECTION 6. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan when
due in accordance with the terms hereof; or the Borrower shall fail to pay
any interest on any Loan or any other amount payable hereunder or under
any other Loan Document, within three days after any such interest or
other amount becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by the
Borrower or the Guarantor herein or in any other Loan Document or that is
contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or
any such other Loan Document shall prove to have been inaccurate in any
material respect on or as of the date made or deemed made; or
(c) the Borrower shall default in the observance or performance of
any agreement contained in Section 5.1(e), Section 5.1(i)(i) or Section
5.2 of this Agreement or the Guarantor shall default in the observance or
performance of any agreement contained in Sections 8.1(c), 8.1(g)(i),
8.1(h), 8.1(i) or 8.2 of the Guaranty Agreement; or
(d) the Borrower or the Guarantor shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Loan Document (other than as provided in paragraphs (a) through (c)
of this Section), and such default shall
35
continue unremedied for a period of 30 days after the earlier of (i) the
date on which a Responsible Officer of the Borrower or the Guarantor has
knowledge of such default and (ii) the Borrower or the Guarantor receives
written notice thereof from the Administrative Agent or the Required
Lenders; or
(e) the Borrower, BAFC or any other Investor Certificateholder that
is an Affiliate of the Guarantor shall (i) default in making any payment
of any principal of any Indebtedness (including any Guarantee Obligation,
but excluding the Loans) or of any material amounts under any other
agreement to which it is a party on the scheduled or original due date
with respect thereto; or (ii) default in making any payment of any
interest on any such Indebtedness beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created; or (iii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder
or beneficiary of such Indebtedness (or a trustee or agent on behalf of
such holder or beneficiary) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or
(in the case of any such Indebtedness constituting a Guarantee Obligation)
to become payable; PROVIDED, that a default, event or condition described
in clause (i), (ii) or (iii) of this paragraph (e) shall not at any time
constitute an Event of Default unless, at such time, one or more defaults,
events or conditions of the type described in clauses (i), (ii) and (iii)
of this paragraph (e) shall have occurred and be continuing with respect
to Indebtedness or other amounts the outstanding principal amount of which
exceeds in the aggregate $25,000,000; PROVIDED, FURTHER, that the
immediately preceding proviso shall be deemed inapplicable at any time
that any Purchased Loan shall constitute a Defaulted Loan or shall have
constituted a Delinquent Loan for a period of more than three (3)
successive Business Days.
(f) any Group Member (other than the Borrower) shall (i) default in
making any payment of any principal of any Indebtedness (including any
Guarantee Obligation, but excluding the Loans) or of any material amounts
under any other agreement to which it is a party on the scheduled or
original due date with respect thereto; or (ii) default in making any
payment of any interest on any such Indebtedness beyond the period of
grace, if any, provided in the instrument or agreement under which such
Indebtedness was created; or (iii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to
cause, or to permit the holder or beneficiary of such Indebtedness (or a
trustee or agent on behalf of such holder or beneficiary) to cause, with
the giving of notice if required, such Indebtedness to become due prior to
its stated maturity or (in the case of any such Indebtedness constituting
a Guarantee Obligation) to become payable; PROVIDED, that a default, event
or condition described in clause (i), (ii) or (iii) of this paragraph (f)
shall not at any time constitute an Event of Default unless, at such time,
one or more defaults, events or conditions of the type described in
clauses (i), (ii) and (iii) of this paragraph (f) shall have occurred and
be
36
continuing with respect to Indebtedness or other amounts the outstanding
principal amount of which exceeds in the aggregate $40,000,000; or
(g) (i) any Group Member or Bunge Funding shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it
or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or any Group Member shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Group Member or Bunge Funding any case, proceeding
or other action of a nature referred to in clause (i) above that (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against any Group
Member or Bunge Funding any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets that results in
the entry of an order for any such relief that shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or (iv) any Group Member or Bunge Funding shall
take any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) any Group Member or Bunge Funding shall generally not,
or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(h) one or more judgments or decrees shall be entered against any
Group Member (other than the Borrower) involving in the aggregate a
liability (not paid or fully covered by insurance as to which the relevant
insurance company has acknowledged coverage) of $40,000,000 or more, and
all such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 30 days from the entry thereof; or
(i) one or more judgments or decrees shall be entered against the
Borrower involving in the aggregate a liability (not paid or fully covered
by insurance as to which the relevant insurance company has acknowledged
coverage) of $50,000 or more, and all such judgments or decrees shall not
have been vacated, discharged, stayed or bonded pending appeal within 30
days from the entry thereof; or
(j) any of the Loan Documents or the Transaction Documents shall
cease, for any reason, to be in full force and effect or the Borrower or
the Guarantor shall so assert in writing; or
(k) a Change in Control of the Guarantor shall have occurred; or
(l) the Borrower shall become an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, and shall not
be exempt from compliance under such Act;
37
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (g) above with respect to the Borrower or the Guarantor, then in
such case automatically the Commitments shall immediately terminate and the
Loans (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents shall immediately become due and payable,
and (B) if such event is any other Event of Default, any or all of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; (ii) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower, declare the Loans (with accrued interest
thereon) and all other amounts owing under this Agreement and the other Loan
Documents to be due and payable forthwith, whereupon the same shall immediately
become due and payable; and (iii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, instruct the Borrower to,
and in such event the Borrower shall, instruct the trustee of the Master Trust
to declare the principal and accrued interest in respect of the Purchased Loans
to be due and payable. Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived by the Borrower.
SECTION 7. THE AGENTS
7.1 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
7.2 DELEGATION OF DUTIES. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
7.3 EXCULPATORY PROVISIONS. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a court of competent jurisdiction to have resulted from its or such Person's own
gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any
38
recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
7.4 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to the Guarantor or the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the other Loan Documents in accordance with a request
of the Required Lenders (or, if so specified by this Agreement, all Lenders),
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Loans.
7.5 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
unless the Administrative Agent has received notice from a Lender, the Guarantor
or the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders); PROVIDED that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
7.6 NON-RELIANCE ON AGENTS AND OTHER LENDERS. Each Lender expressly
acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates have made any
representations or warranties to it and that
39
no act by any Agent hereafter taken, including any review of the affairs of a
Loan Party or any Affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents to
the Agents that it has, independently and without reliance upon any Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their Affiliates and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their Affiliates. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate
of a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
7.7 INDEMNIFICATION. The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by the Guarantor or the
Borrower and without limiting the obligation of the Guarantor or the Borrower to
do so), ratably according to their respective Aggregate Exposure Percentages in
effect on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by such Agent under or in connection with any of the foregoing; PROVIDED
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a decision of a court of
competent jurisdiction to have resulted from such Agent's gross negligence or
willful misconduct. The agreements in this Section shall survive the payment of
the Loans and all other amounts payable hereunder.
7.8 AGENT IN ITS INDIVIDUAL CAPACITY. Each Agent and its Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with any Loan Party as though such Agent were not an Agent. With
respect to its Loans made or renewed by it, each Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not an Agent, and the terms
"Lender" and "Lenders" shall include each Agent in its individual capacity.
40
7.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 6(a) or Section
6(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 10 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 7.9 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
7.10 SYNDICATION AGENTS. Neither Syndication Agent shall have any
duties or responsibilities hereunder in its capacity as such.
SECTION 8. MISCELLANEOUS
8.1 AMENDMENTS AND WAIVERS. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 8.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may,
or, with the written consent of the Required Lenders, the Administrative Agent
and each Loan Party party to the relevant Loan Document may, from time to time,
(a) enter into written amendments, supplements or modifications hereto and to
the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; PROVIDED, HOWEVER, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the
final scheduled date of maturity of any Loan, reduce the stated rate of any
interest or fee payable hereunder (except (x) in connection with the waiver of
applicability of any post-default increase in interest rates and (y) that any
amendment or modification of defined terms used in the financial covenants in
this Agreement shall not constitute a reduction in the rate of interest or fees
for purposes of this clause (i)) or extend the scheduled date of any payment
thereof, or increase the amount or or extend the expiration date of any Lender's
Commitment, or increase any Lender's Aggregate Exposure Percentage, in each case
without the written consent of each Lender directly
41
affected thereby; (ii) eliminate or reduce the voting rights of any Lender under
this Section 8.1 without the written consent of such Lender; (iii) reduce any
percentage specified in the definition of Required Lenders, consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents, amend or waive Section
5.1(j), or release the Guarantor from its obligations under the Guaranty
Agreement, or assign any obligations under the Guaranty Agreement, or effect any
action pursuant to Section 17 of the Guaranty Agreement, in each case without
the written consent of all Lenders; or (iv) amend, modify or waive any provision
of Section 7 without the written consent of the Administrative Agent. Any such
waiver and any such amendment, supplement or modification shall apply equally to
each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
8.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
Borrower: 00000 Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxx Limited
00 Xxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx / Xxxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000 (or 3450)
Administrative Agent: 1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
42
PROVIDED that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
8.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
8.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
8.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including the reasonable fees and disbursements of counsel to the
Administrative Agent and filing and recording fees and expenses, with statements
with respect to the foregoing to be submitted to the Borrower prior to the
Closing Date (in the case of amounts to be paid on the Closing Date) and from
time to time thereafter on a quarterly basis or such other periodic basis as the
Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender
and the Administrative Agent for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including the
fees and disbursements of counsel (including the allocated fees and expenses of
in-house counsel) to each Lender and of counsel to the Administrative Agent, (c)
to pay, indemnify, and hold each Lender and the Administrative Agent harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, that may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender and the Administrative Agent and their respective officers,
directors, employees, Affiliates, agents and controlling persons (each, an
"INDEMNITEE") harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of any Group Member or any of the properties owned by such Group
Members and the reasonable fees and expenses of legal counsel in connection with
claims, actions or proceedings by any Indemnitee against any Loan Party under
43
any Loan Document (all the foregoing in this clause (d), collectively, the
"INDEMNIFIED LIABILITIES"), PROVIDED, that the Borrower shall have no obligation
hereunder to any Indemnitee with respect to Indemnified Liabilities to the
extent such Indemnified Liabilities are found by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Indemnitee. Without limiting the foregoing, and to the extent permitted by
applicable law, the Borrower agrees not to assert, and hereby waives, all rights
for contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee. All amounts due
under this Section 8.5 shall be payable not later than 10 days after written
demand therefor. Statements payable by the Borrower pursuant to this Section 8.5
shall be submitted to Xxxxxx Xxxxx and Xxxxx Xxxxxx (Telephone No. (914)
000-0000 (or 3450)) (Telecopy No. (000) 000-0000), at the address of Xxxxx
Limited set forth in Section 8.2, or to such other Person or address as may be
hereafter designated by the Borrower in a written notice to the Administrative
Agent. The agreements in this Section 8.5 shall survive repayment of the Loans
and all other amounts payable hereunder.
8.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Administrative Agent, all future holders of the Loans and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the
consent of the Borrower, in accordance with applicable law, at any time sell to
one or more banks, financial institutions or other entities (each, a
"PARTICIPANT") participating interests in any Loan owing to such Lender, the
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Loan Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Loan for all purposes under this Agreement
and the other Loan Documents, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Loan
Documents. In no event shall any Participant under any such participation have
any right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Loan Party therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal of,
or interest on, the Loans or any fees payable hereunder, or postpone the date of
the final maturity of the Loans, in each case to the extent subject to such
participation. The Borrower agrees that if amounts outstanding under this
Agreement and the Loans are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law, be deemed
to have the right of setoff in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement, PROVIDED that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 8.7 as fully as if it were a Lender
hereunder. The Borrower also
44
agrees that each Participant shall be entitled to the benefits of Sections 2.12,
2.13 and 2.14 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender; PROVIDED that, in the case
of Section 2.13, such Participant shall have complied with the requirements of
said Section and PROVIDED, FURTHER, that no Participant shall be entitled to
receive any greater amount pursuant to any such Section than the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred.
(c) Any Lender other than any Conduit Lender (an "ASSIGNOR") may, in
accordance with applicable law, at any time and from time to time assign to any
Person (an "ASSIGNEE") all or any part of its rights and obligations under this
Agreement and the other Loan Documents pursuant to an Assignment and Acceptance,
executed by such Assignee, such Assignor and any other Person whose consent is
required pursuant to this paragraph, and delivered to the Administrative Agent
for its acceptance and recording in the Register; PROVIDED that (i) the consent
of the Borrower and the Administrative Agent (which, in each case, shall not be
unreasonably withheld or delayed) shall be required in the case of (x) any
assignment to a Person that is not a Lender or a Lender Affiliate or (y) any
assignment of a Commitment to a Person that does not have a Commitment (except
that the consent of the Borrower shall not be required for any assignment that
occurs when an Event of Default shall have occurred and be continuing) and (ii)
unless otherwise agreed by the Borrower and the Administrative Agent, no such
assignment to an Assignee (other than any Lender or any Lender Affiliate) shall
be in an aggregate principal amount of less than $5,000,000, in each case except
in the case of an assignment of all of a Lender's interests under this
Agreement. For purposes of the proviso contained in the preceding sentence, the
amount described therein shall be aggregated in respect of each Lender and its
Lender Affiliates, if any. Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with a Commitment and/or Loans as set
forth therein, and (y) the Assignor thereunder shall, to the extent provided in
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of an
Assignor's rights and obligations under this Agreement, such Assignor shall
cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender
may assign at any time to its designating Lender hereunder without the consent
of the Borrower or the Administrative Agent any or all of the Loans it may have
funded hereunder and pursuant to its designation agreement and without regard to
the limitations set forth in the first sentence of this Section 8.6(c).
(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 8.2 a copy of each Assignment and
Acceptance delivered to it and a register (the "REGISTER") for the recordation
of the names and addresses of the Lenders and the Commitment of, and the
principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, each other Loan Party, the Administrative Agent and the
Lenders shall treat each Person whose name is recorded in the Register as the
owner of the Loans and any Notes evidencing the Loans recorded therein for all
purposes of this Agreement. Any assignment of any Loan, whether or not evidenced
by a Note, shall be effective only upon appropriate entries with respect thereto
being made in the Register (and each Note shall expressly so provide). Any
45
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment or
transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Acceptance, and thereupon one or more new Notes shall be issued
to the designated Assignee.
(e) Upon its receipt of an Assignment and Acceptance executed by an
Assignor, an Assignee and any other Person whose consent is required by Section
8.6(c), together with payment to the Administrative Agent of a registration and
processing fee of $4,000 (such fee not to be payable by the Borrower), the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) record the information contained therein in the Register on the
effective date determined pursuant thereto.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 8.6 concerning assignments
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including any pledge or assignment by a
Lender to any Federal Reserve Bank in accordance with applicable law.
(g) The Borrower, upon receipt of written notice from the relevant
Lender, agrees to issue Notes to any Lender requiring Notes to facilitate
transactions of the type described in paragraph (f) above.
(h) Each of the Borrower, each Lender and the Administrative Agent
hereby confirms that it will not institute against a Conduit Lender or join any
other Person in instituting against a Conduit Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under any
state bankruptcy or similar law, for one year and one day after the payment in
full of the latest maturing commercial paper note issued by such Conduit Lender;
PROVIDED, however, that each Lender designating any Conduit Lender hereby agrees
to indemnify, save and hold harmless each other party hereto for any loss, cost,
damage or expense arising out of its inability to institute such a proceeding
against such Conduit Lender during such period of forbearance.
8.7 ADJUSTMENTS; SET-OFF(a) . (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular Lender
or to the Lenders on a non PRO RATA basis, if any Lender (a "BENEFITTED LENDER")
shall, at any time after the Loans and other amounts payable hereunder shall
immediately become due and payable pursuant to Section 6, receive any payment of
all or part of the Obligations owing to it, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 6(g), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of the Obligations owing to such other Lender, such
Benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of the Obligations owing to each such other Lender, or
shall provide such other Lenders with the benefits of any such collateral, as
shall be necessary to cause such Benefitted Lender to share the excess payment
or benefits of such collateral ratably with each of the Lenders; PROVIDED,
HOWEVER, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
46
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Guarantor
or the Borrower, any such notice being expressly waived by the Guarantor and the
Borrower to the extent permitted by applicable law, upon any amount becoming due
and payable by the Guarantor or the Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise), to set off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of the
Guarantor or the Borrower, as the case may be. Each Lender agrees promptly to
notify the Borrower and the Administrative Agent after any such setoff and
application made by such Lender, PROVIDED that the failure to give such notice
shall not affect the validity of such setoff and application.
8.8 COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
8.9 SEVERABILITY. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.10 INTEGRATION. This Agreement and the other Loan Documents represent the
entire agreement of the Guarantor, the Borrower, the Administrative Agent and
the Lenders with respect to the subject matter hereof and thereof, and there are
no promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 SUBMISSION TO JURISDICTION; WAIVERS. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts
of the State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;
47
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower, as the case may be at its address set forth in Section 8.2 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential
damages.
8.13 ACKNOWLEDGEMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
8.14 CONFIDENTIALITY. Each of the Administrative Agent and each
Lender agrees to keep confidential all non-public information provided to it by
any Loan Party pursuant to this Agreement that is designated by such Loan Party
as confidential; PROVIDED that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any Lender Affiliate, (b) subject to
an agreement to comply with the provisions of this Section, to any actual or
prospective Transferee or any direct or indirect counterparty to any Hedge
Agreement (or any professional advisor to such counterparty), (c) to its
employees, directors, agents, attorneys, accountants and other professional
advisors or those of any of its Affiliates, (d) upon the request or demand of
any Governmental Authority, (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with any
litigation or similar proceeding, (g) that has been publicly disclosed, (h) to
the National Association of Insurance Commissioners or any similar organization
or any nationally recognized rating agency that requires access to information
about
48
a Lender's investment portfolio in connection with ratings issued with respect
to such Lender, or (i) in connection with the exercise of any remedy hereunder
or under any other Loan Document.
8.15 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.16 NO BANKRUPTCY PETITION AGAINST THE BORROWER; LIABILITY OF THE
BORROWER.
(a) Each of the Administrative Agent and the Lenders hereby
covenants and agrees that, prior to the date which is one year and one day
after the payment in full of all Loans and other amounts payable hereunder
and all Pari Passu Indebtedness, it will not institute against, or join
with or assist any other Person in instituting against, the Borrower, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any applicable insolvency laws.
This Section 8.16 shall survive the termination of this Agreement.
(b) Notwithstanding any other provision hereof or of any other Loan
Documents, the sole remedy of the Administrative Agent, any Lender or any
other Person against the Borrower in respect of any obligation, covenant,
representation, warranty or agreement of the Borrower under or related to
this Agreement or any other Loan Document shall be against the assets of
the Borrower. Neither the Administrative Agent, nor any Lender nor any
other Person shall have any claim against the Borrower to the extent that
such assets are insufficient to meet such obligations, covenant,
representation, warranty or agreement (the difference being referred to
herein as a "SHORTFALL") and all claims in respect of the shortfall shall
be extinguished; PROVIDED, HOWEVER, that the provisions of this Section
8.16 apply solely to the obligations of the Borrower and shall not
extinguish such shortfall or otherwise restrict such Person's rights or
remedies against the Guarantor for purposes of the obligations of the
Guarantor to any Person under the Guaranty Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Revolving
Credit Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
XXXXX LIMITED FINANCE CORP.
By: /s/ Xxxxxx Xxxxx
-----------------------------
Printed Name: Xxxxxx Xxxxx
-----------------------------
Title: Corporate Treasurer
-----------------------------
JPMORGAN CHASE BANK,
as Administrative Agent and a Lender
By: /s/ Xxxx Xxxxxxx
------------------------------------
Printed Name: Xxxx X. Xxxxxxx
------------------------------------
Title: Vice President
------------------------------------
CREDIT LYONNAIS CHICAGO BRANCH,
as a Co-Syndication Agent and Lender
By: /s/ Xxx X. Xxxxx
------------------------------------
Printed Name: Xxx X. Xxxxx
------------------------------------
Title: First Vice President
------------------------------------
By: /s/ Xxxx Xxx Xxxxx
------------------------------------
Printed Name: Xxxx Xxx Xxxxx
------------------------------------
Title: Vice President
------------------------------------
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND",
as a Co-Syndication Agent and Lender
By: /s/ W. Xxxxxx X. Xxxxx
------------------------------------
Printed Name: W. Xxxxxx X. Xxxxx
------------------------------------
Title: Managing Director
------------------------------------
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Printed Name: Xxxxx X. Xxxxxx
------------------------------------
Title: Managing Director
------------------------------------
BNP PARIBAS,
as a Managing Agent and Lender
By: /s/ Pierre-Xxxxxx Xxxxx
------------------------------------
Printed Name: Pierre-Xxxxxx Xxxxx
------------------------------------
Title: Managing Director
------------------------------------
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Printed Name: Xxxxxxx Xxxxxx
------------------------------------
Title: Director
------------------------------------
CITIBANK, N.A.,
as a Managing Agent and Lender
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Printed Name: Xxxxxx X. Xxxx
------------------------------------
Title: Vice President
------------------------------------
By:
------------------------------------
Printed Name:
------------------------------------
Title:
------------------------------------
CREDIT SUISSE FIRST BOSTON,
as a Managing Agent and Lender
By: /s/ X.X. Xxxxxxxx
------------------------------------
Printed Name: X.X. Xxxxxxxx
------------------------------------
Title: Director
------------------------------------
By: /s/ X.X. Xxxxx
------------------------------------
Printed Name: X.X. Xxxxx
------------------------------------
Title: Director
------------------------------------
WESTDEUTSCHE LANDEBANK
GIROZENTRALE, NEW YORK BRANCH,
as a Co-Agent and Lender
By: /s/ Xxxxxxxxx Xxxxx
------------------------------------
Printed Name: Xxxxxxxxx Xxxxx
------------------------------------
Title: Associate Firector
------------------------------------
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Printed Name: Xxxxxx Xxxxxxxxx
------------------------------------
Title: Associate Director
------------------------------------
ING BANK N.V. CURACAO BRANCH,
as a Co-Agent and Lender
By: /s/ A.B. Rosaria
------------------------------------
Printed Name: A.B. Rosaria
------------------------------------
Title: Risk Manager
------------------------------------
By: /s/ A.C. Zulia
------------------------------------
Printed Name: A.C. Zulia
------------------------------------
Title: Settlements Department
------------------------------------
DRESDNER BANK AG NEW YORK
AND GRAND CAYMAN BRANCHES,
as a Participant and Lender
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Printed Name: Xxxxxx Xxxxxxxxx
------------------------------------
Title: Vice President
------------------------------------
By: /s/ Xxxxx Xxxxxxxxx xx Xxxxxx
------------------------------------
Printed Name: Xxxxx Xxxxxxxxx xx Xxxxxx
------------------------------------
Title: CTF Officer
------------------------------------
DEUTSCHE BANK AG NEW YORK
BRANCH,
as a Participant and Lender
By: /s/ Xxxxxxxxx Xxxxx
----------------------------------
Printed Name: xxxxxxxxx Xxxxx
----------------------------------
Title: Vice President
----------------------------------
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Printed Name: Xxxxxx X. xxxxx
----------------------------------
Title: Vice President
----------------------------------
ABN AMRO BANK N.V.,
as a Participant and Lender
By: /s/ Xxxxxx Noique
-----------------------------------
Printed Name: Xxxxxx Noique
-----------------------------------
Title: Group Vice President
-----------------------------------
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Printed Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
FORTIS BANK (NEDERLAND) N.V.,
as a Participant and Lender
By: /s/ Xxxx xxx Xxxxx
-----------------------------------
Printed Name: Xxxx xxx Xxxxx
-----------------------------------
Title: Senior Account Manager
-----------------------------------
By: /s/ Y.C.M. van der Kloet
-----------------------------------
Printed Name: Y.C.M. van der Kloet
-----------------------------------
Title: Deputy Director
-----------------------------------
SCHEDULE 1.1
COMMITMENTS
---------------------------------------------------------------------------------
LENDER COMMITMENT
---------------------------------------------------------------------------------
JPMorgan Chase Bank $ 60,000,000
---------------------------------------------------------------------------------
Credit Lyonnais Chicago Branch 60,000,000
---------------------------------------------------------------------------------
Cooperatieve Centrale 60,000,000
Raiffeisen-Boerenleenbank B.A.,
"Rabobank International", New York
---------------------------------------------------------------------------------
BNP Paribas 40,000,000
---------------------------------------------------------------------------------
Citibank, N.A. 40,000,000
---------------------------------------------------------------------------------
Credit Suisse First Boston 40,000,000
---------------------------------------------------------------------------------
Westdeutsche Landesbank Girozentrale, 35,000,000
New York Branch
---------------------------------------------------------------------------------
ING Bank N.V., Curacao Branch 30,000,000
---------------------------------------------------------------------------------
Dresdner Bank AG New York and Grand 20,000,000
Cayman Branches
---------------------------------------------------------------------------------
Deutsche Bank AG New York Branch 15,000,000
---------------------------------------------------------------------------------
ABN AMRO Bank N.V. 10,000,000
---------------------------------------------------------------------------------
Fortis Bank (Nederland) N.V. 10,000,000
---------------------------------------------------------------------------------
SCHEDULE 3.3
CONSENTS, AUTHORIZATIONS, FILINGS AND NOTICES
None.
EXHIBIT A
FORM OF GUARANTY AGREEMENT
EXHIBIT B
FORM OF CLOSING CERTIFICATE
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the
Revolving Credit Agreement, dated as of
March 1, 2002 (as amended, supplemented or otherwise modified to the Effective
Date (as defined below), the "
REVOLVING CREDIT AGREEMENT"), among XXXXX LIMITED
FINANCE CORP. (the "BORROWER"), the Lenders named therein, and JPMORGAN CHASE
BANK, as Administrative Agent. Terms defined in the Agreement are used herein
with the same meanings.
_______________ (the "ASSIGNOR") and ________________ (the
"ASSIGNEE") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date, a _____% interest (the "ASSIGNED INTEREST") in and to the
Assignor's rights and obligations under the Agreement with respect to those
credit facilities contained in the Agreement as are set forth on Schedule 1
(individually, an "ASSIGNED Facility"; collectively, the "ASSIGNED FACILITIES"),
in a principal amount for each Assigned Facility as set forth on Schedule 1 (the
aggregate amount of which is not less than $5,000,000).
2. The Assignor (i) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Agreement or
any other instrument or document furnished pursuant thereto, other than that it
has not created any adverse claim upon the interest being assigned by it
hereunder and that such interest is free and clear of any such adverse claim;
(ii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Company, any of its Subsidiaries or
any other obligor or the performance or observance by the Company, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Agreement or any other instrument or document furnished pursuant hereto or
thereto; and (iii) attaches the promissory note(s) (if any) held by it
evidencing the Assigned Facilities and (a) requests that the Agent (upon request
by the Assignee) exchange such promissory note(s) for a new promissory note or
promissory notes payable to the Assignee and (b) if the Assignor has retained
any interest in the Assigned Facilities, requests that the Agent exchange the
attached promissory note(s) for a new promissory note or promissory notes
payable to the Assignor, in each case, in the amount which reflects the
assignment being made hereby (and after giving effect to any other assignments
which have become effective on the Effective Date).
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Agreement, together with copies of the financial
statements delivered pursuant to subsections 5.1(f) and 5.1(g) thereof and
subsection 8.1(a) of the Guaranty, dated March 1, 2002, by Xxxxx Limited in
favor of the Administrative Agent and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (iii) agrees that it will, independently
and without reliance upon the Assignor,
the Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Agreement or any other instrument or
document furnished pursuant hereto or thereto; (iv) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Agreement or any other instrument or document furnished
pursuant hereto or thereto as are delegated to the Agent by the terms thereof,
together with such powers as are incidental thereto; and (v) agrees that it will
be bound by the provisions of the Agreement and will perform in accordance with
its terms all the obligations which by the terms of the Agreement are required
to be performed by it as a Lender including, if it is organized under the laws
of a jurisdiction outside the United States, its obligation pursuant to
subsection 2.13(d) of the Agreement to deliver the forms prescribed by the
Internal Revenue Service of the United States certifying as to the Assignee's
exemption from United States withholding taxes with respect to all payments to
be made to the Assignee under the Agreement, or such other documents as are
necessary to indicate that all such payments are subject to such tax at a rate
reduced by an applicable tax treaty.
4. The effective date of this Assignment and Acceptance shall be
_________, 200_ (the "EFFECTIVE DATE"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance by
it and recording by the Agent pursuant to subsection 8.6(c) of the Agreement,
effective as of the Effective Date (which shall not, unless otherwise agreed to
by the Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to the Effective Date or accrue
on or subsequent to the Effective Date. The Assignor and the Assignee shall make
all appropriate adjustments in payments by the Agent for periods prior to the
Effective Date or with respect to the making of this assignment directly between
themselves.
6. From and after the Effective Date, (i) the Assignee shall be a
party to the Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and shall be
bound by the provisions thereof and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Agreement.
7. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed as of ________, 200_ by their respective duly
authorized officers on Schedule 1 hereto.
Schedule 1
to Assignment and Acceptance
relating to the
Revolving Credit Agreement dated as of March 1, 2002, among
XXXXX LIMITED FINANCE CORP., the Lenders named therein, and JPMORGAN
CHASE BANK, as administrative agent (in such capacity, the "Agent").
--------------------------------------------------------------------------------
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
-----------------------------------------------------------------------------------------
Commitment Percentage Assigned
(to at least fifteen decimals) (shown as
Credit Principal a percentage of aggregate principal
Facility Assigned Amount Assigned amount of all Lenders)
-----------------------------------------------------------------------------------------
ACCEPTED:
[ASSIGNOR] [ASSIGNEE]
By:__________________________________ By:__________________________________
Name: Name:
Title: Title:
CONSENTED TO:(1)
JPMORGAN CHASE BANK, XXXXX LIMITED FINANCE CORP.
as Agent
By:__________________________________
By:__________________________________ Name:
Name: Title:
Title:
----------
(1) Consent of the Administrative Agent and the Borrower is required only with
respect to assignments to a Person not then a Lender or a Lender Affiliate
and any assignment of the Commitment to a Person that does not have a
Commitment (except that the consent of the Borrower shall not be required
for any assignment that occurs when an Event of Default shall have
occurred and be continuing).
EXHIBIT D-1
EXHIBIT D-2
EXHIBIT E
FORM OF EXEMPTION CERTIFICATE
Reference is made to the
Revolving Credit Agreement, dated as of
March 1, 2002 (as amended, supplemented or otherwise modified from time to time,
the "
REVOLVING CREDIT AGREEMENT") among XXXXX LIMITED FINANCE CORP., a Delaware
corporation (the "BORROWER"), the several banks and other financial institutions
from time to time parties thereto (the "LENDERS"), and JPMORGAN CHASE BANK, as
administrative agent for the Lenders hereunder (in such capacity, the
"ADMINISTRATIVE AGENT"). Capitalized terms used herein that are not defined
herein shall have the meanings ascribed to them in the Credit Agreement.
_________________________ (the "NON-U.S. LENDER") is providing this certificate
pursuant to subsection 2.13(d) of the Credit Agreement. The Non-U.S. Lender
hereby represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner of
the Loans or the obligations evidenced by Note(s) in respect of which it is
providing this certificate.
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "CODE"). In
this regard, the ---- Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other legal
requirements as a bank in any jurisdiction; and
(b) the Non-U.S. Lender has not been treated as a bank for purposes
of any tax, securities law or other filing or submission made to any
Governmental Authority, any application made to a rating agency or
qualification for any exemption from tax, securities law or other
legal requirements;
3. The Non-U.S. Lender is not a 10-percent shareholder of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code; and
4. The Non-U.S. Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code.
IN WITNESS WHEREOF, the undersigned has duly executed this certificate.
[NAME OF NON-U.S. LENDER]
By: ________________________
Name:
Title:
Date: ___________________________________
EXHIBIT F
FORM OF
COMMITMENT INCREASE SUPPLEMENT
COMMITMENT INCREASE SUPPLEMENT, dated _________________ (this
"SUPPLEMENT"), to the
Revolving Credit Agreement, dated as of March 1, 2002 (as
amended, supplemented or otherwise modified from time to time, the "AGREEMENT"),
among Xxxxx Limited Finance Corp. (the "BORROWER"), the lenders parties thereto
(the "LENDERS"), JPMorgan Chase Bank, as administrative agent (in such capacity,
the "ADMINISTRATIVE AGENT") for the Lenders, Credit Lyonnais Chicago Branch, as
co-syndication agent, and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank International", New York Branch, as co-syndication agent.
W I T N E S S E T H :
WHEREAS, pursuant to subsection 2.1(b)(i) of the Agreement, the
Borrower has the right, subject to the terms and conditions thereof, to
effectuate from time to time an increase in the aggregate Commitments under the
Agreement by requesting one or more Lenders to increase the amount of its
Commitment;
WHEREAS, the Borrower has given notice to the Administrative Agent
of its intention to increase the aggregate Commitments pursuant to such
subsection 2.1(b)(i); and
WHEREAS, pursuant to subsection 2.1(b)(ii) of the Agreement, the
undersigned Increasing Lender now desires to increase the amount of its
Commitment under the Agreement by executing and delivering to the Borrower and
the Administrative Agent a supplement to the Agreement in substantially the form
of this Supplement;
NOW THEREFORE, each of the parties hereto hereby agrees as follows:
1. The undersigned Increasing Lender agrees, subject to the terms
and conditions of the Agreement, that on the date this Supplement is
accepted by the Borrower and acknowledged by the Administrative Agent it
shall have its Commitment increased by $______________, thereby making the
amount of its Commitment $______________.
2. The Borrower hereby represents and warrants that no Default or
Event of Default has occurred and is continuing on and as of the date
hereof.
3. Terms defined in the Agreement shall have their defined meanings
when used herein.
4. This Supplement shall be governed by, and construed in accordance
with, the laws of the State of New York.
5. This Supplement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when
so executed shall be
deemed to be an original and all of which taken together shall constitute
one and the same document.
IN WITNESS WHEREOF, each of the undersigned has caused this
Supplement to be executed and delivered by a duly authorized officer on the date
first above written.
[INSERT NAME OF INCREASING LENDER]
By:_________________________________
Name:
Title:
Agreed and accepted this ____ day of
____________, ____.
XXXXX LIMITED FINANCE CORP.
By:____________________________
Name:
Title:
Acknowledged this ____ day of
____________, ____.
JPMORGAN CHASE BANK,
as Administrative Agent
By:____________________________
Name:
Title:
EXHIBIT G
FORM OF
ADDITIONAL LENDER SUPPLEMENT
ADDITIONAL LENDER SUPPLEMENT, dated _________________ (this
"Supplement"), to the
Revolving Credit Agreement, dated as of March 1, 2002 (as
amended, supplemented or otherwise modified from time to time, the "AGREEMENT"),
among Xxxxx Limited Finance Corp. (the "BORROWER"), the lenders parties thereto
(the "LENDERS"), JPMorgan Chase Bank, as administrative agent (in such capacity,
the "ADMINISTRATIVE AGENT") for the Lenders, Credit Lyonnais Chicago Branch, as
co-syndication agent, and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank International", New York Branch, as co-syndication agent.
W I T N E S S E T H :
WHEREAS, the Agreement provides in subsection 2.1(b)(ii) thereof
that any financial institution, although not originally a party thereto, may
become a party to the Agreement following consultation by the Borrower with the
Administrative Agent, by executing and delivering to the Borrower and the
Administrative Agent a supplement to the Agreement in substantially the form of
this Supplement; and
WHEREAS, the undersigned Additional Lender was not an original party
to the Agreement but now desires to become a party thereto;
NOW, THEREFORE, each of the parties hereto hereby agrees as follows:
1. The undersigned Additional Lender agrees to be bound by the
provisions of the Agreement and agrees that it shall, on the date this
Supplement is accepted by the Borrower and acknowledged by the
Administrative Agent, become a Lender for all purposes of the Agreement to
the same extent as if originally a party thereto, with a Commitment of
$_______________.
2. The undersigned Additional Lender (a) represents and warrants
that it is legally authorized to enter into this Supplement; (b) confirms
that it has received a copy of the Agreement, together with copies of the
most recent financial statements delivered pursuant to Sections 5.1(f) and
(g) thereof, as applicable, and has reviewed such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Supplement; (c) agrees that it will,
independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Agreement or any other instrument or
document furnished pursuant hereto or thereto; (d) appoints and authorizes
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Agreement or any other
instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with
such powers as are incidental thereto; and (e) agrees that it
will be bound by the provisions of the Agreement and will perform in
accordance with its terms all the obligations which by the terms of the
Agreement are required to be performed by it as a Lender.
3. The undersigned's address for notices for the purposes of the
Agreement is as follows:
4. The Borrower hereby represents and warrants that no Default of
Event of Default has occurred and is continuing on and as of the date
hereof.
5. Terms defined in the Agreement shall have their defined meanings
when used herein.
6. This Supplement shall be governed by, and construed in accordance
with, the laws of the State of New York.
7. This Supplement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same document.
IN WITNESS WHEREOF, each of the undersigned has caused this
Supplement to be executed and delivered by a duly authorized officer on the date
first above written.
[INSERT NAME OF ADDITIONAL LENDER]
By:________________________________
Name:
Title:
Agreed and accepted this ____ day of
____________, ____.
XXXXX LIMITED FINANCE CORP.
By:____________________________
Name:
Title:
Acknowledged this ____ day of
____________, ____.
JPMORGAN CHASE BANK,
as Administrative Agent
By:____________________________
Name:
Title:
