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EXECUTION COPY
$2,000,000,000
CREDIT AGREEMENT
Dated as of June 30, 2000
among
ANHEUSER-XXXXX COMPANIES, INC.
ANHEUSER-XXXXX, INCORPORATED
The Banks Listed Herein
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
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CHASE SECURITIES INC.,
As Advisor, Lead Arranger and Book Manager
BANK ONE, NA,
CITIBANK, N.A.,
and
THE INDUSTRIAL BANK OF JAPAN, LIMITED
As Co-Syndication Agents
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CREDIT AGREEMENT dated as of June 30, 2000, among
ANHEUSER-XXXXX COMPANIES, INC., a Delaware corporation,
ANHEUSER-XXXXX, INCORPORATED, a Missouri corporation, the
BANKS listed on the signature pages hereof and THE CHASE
MANHATTAN BANK as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following terms, as used herein,
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have the following meanings:
"ABI" means Anheuser-Xxxxx, Incorporated, a Missouri corporation,
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and its successors and permitted assigns.
"ABI Guarantee" means the Guarantee of ABI under Article IX in
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respect of the Loans and other amounts owing hereunder.
"Absolute Rate Auction" means a solicitation of Money Market Quotes
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setting forth Money Market Absolute Rates pursuant to Section 2.04.
"Adjusted CD Rate" has the meaning set forth in Section 2.08(b).
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"Adjusted LIBO Rate" has the meaning set forth in Section 2.08(c).
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"Administrative Agent" means The Chase Manhattan Bank in its
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capacity as agent for the Banks hereunder and its successors in such
capacity.
"Administrative Questionnaire" means, with respect to each Bank, an
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administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Company) duly
completed by such Bank.
"Affiliate" means, with respect to a Person, any other Person that,
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directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person.
"Assessment Rate" has the meaning set forth in Section 2.08(b).
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"Bank" means a financial institution listed on the signature pages
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hereof as having
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a Commitment or a financial institution added pursuant to Section 8.05,
and its successors and permitted assigns; and "Banks" means all of such
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institutions.
"Bank Affiliate" means, with respect to any Bank, (i) an Affiliate
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of such Bank or (ii) any entity (whether a corporation, partnership, trust
or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary
course of its business and is administered or managed by a Bank or an
Affiliate of such Bank.
"Base Rate" means, for any day, a rate per annum equal to the higher
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of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means a Syndicated Loan to be made as a Base Rate
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Loan pursuant to Section 2.03 and in accordance with the applicable Notice
of Borrowing, or a Loan to be made as a Base Rate Loan pursuant to the final
proviso of clause (1) or clause (2) of the definition of Interest Period or
pursuant to Article VIII.
"Benefit Arrangement" means an employee benefit plan within the
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meaning of Section 3 (3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the
ERISA Group.
"Board of Directors" means either the board of directors of the
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Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
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Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Administrative Agent.
"Borrower" means the Company or an Eligible Subsidiary, as the
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context may require, and their respective successors and permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans made to
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a Borrower at the same time and for the same Interest Period by one or more
of the Banks severally. A Borrowing is a "Domestic Borrowing" if such Loans
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are Domestic Loans or a "Euro-Dollar Borrowing" if such Loans are Euro-Dollar
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Loans. A Domestic Borrowing is a "CD Borrowing" if such Domestic Loans are
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CD Loans or a "Base Rate Borrowing" if such Domestic Loans are Base Rate
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Loans. A Borrowing is a "Syndicated Borrowing" if such Loans are Syndicated
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Loans. A Borrowing is a "Money Market Borrowing" if such Loans are Money
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Market Loans. A Borrowing is a "Negotiated Rate Borrowing" if such Loans are
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Negotiated Rate Loans.
"CD Base Rate" has the meaning set forth in Section 2.08(b).
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"CD Loan" means a Syndicated Loan to be made as a CD Loan pursuant
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to Section 2.03 and the applicable Notice of Borrowing.
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"CD Margin" has the meaning set forth in Section 2.08(b).
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"CD Reserve Percentage" has the meaning set forth in Section
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2.08(b).
"Code" means the Internal Revenue Code of 1986, as amended.
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"Chase" means The Chase Manhattan Bank.
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"Commitment" means, with respect to each Bank, the amount set forth
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opposite the name of such Bank on Schedule I hereto, as such amount may from
time to time be reduced pursuant to Section 2.10.
"Company" means Anheuser-Xxxxx Companies, Inc., a Delaware
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corporation, and its successors and permitted assigns.
"Company's 1999 Form 10-K" means the Company's annual report on Form
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10-K for 1999, as filed with the Securities and Exchange Commission pursuant
to the Securities Exchange Act of 1934, as amended.
"Consolidated Net Worth" means, at any date, (i) the consolidated
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shareholders equity of the Company (including amounts representing preferred
stock) as of such date (ii) minus, if positive, or plus, if negative, the
foreign currency translation adjustment that would be reflected as a separate
component of consolidated shareholders equity of the Company on a
consolidated balance sheet of the Company as of such date.
"Consolidated Subsidiary" means, with respect to any Person at any
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date, any Subsidiary or other entity the accounts of which are consolidated
with those of such Person in its consolidated financial statements as of such
date.
"Consolidated Tangible Net Worth" means, at any date, Consolidated
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Net Worth after deducting therefrom all (i) goodwill, trade names,
trademarks, patents, copyrights, franchises, unamortized debt discount and
expense, organization and development expense and other intangibles of the
Company and its Consolidated Subsidiaries, all determined on a basis
consistent with that on which such amounts were determined in preparing the
most recent balance sheet of the Company and its Consolidated Subsidiaries
delivered to the Banks pursuant to Section 5.01(a)(i) or (ii), and (ii)
increases in the book values of any assets above the book values thereof
as of March 31, 2000 as a result of any revaluation of such assets.
"Continuing Directors" means, at any date, the Persons who served
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as directors of the Company 15 months prior to such date and any new director
of the Company whose appointment or election by the Board of Directors or
nomination for election by the Company's stockholders was approved or
recommended by the affirmative vote of a majority of the Continuing Directors
serving at the time of such appointment, election or nomination.
"Debt" of any Person means at any date, without duplication, to the
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extent obligations of such type are required to be set forth as liabilities
in such Person's financial
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statements according to generally accepted accounting principles (except in
the case of clause (v) of this definition), (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations
of such Person to pay the deferred purchase price of property or services,
except trade accounts payable arising in the ordinary course of business,
(iv) the capitalized value of all obligations of such Person as lessee under
leases capitalized in accordance with generally accepted accounting
principles, (v) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person (provided that,
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for purposes of this clause (v), the amount of any such Debt, unless assumed
by such Person, shall be deemed not to exceed the higher of the market value
or the net book value of such asset), and (vi) the amounts of all Debt of
other Persons Guaranteed by such Person.
"Default" means any condition or event which constitutes an Event of
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Default or which with the giving of notice or passing of time or both would,
unless cured or waived, become an Event of Default.
"Domestic Business Day" means any day, except a Saturday, Sunday or
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other day on which commercial banks in New York City are authorized by law
to close.
"Domestic Lending Office" means, as to each Bank, its office or
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branch (or affiliate) located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Domestic Lending Office) or such other office as such Bank may hereafter
designate as its Domestic Lending Office by notice to the Company and the
Administrative Agent; provided that any Bank may from time to time by notice
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to the Company and the Administrative Agent designate separate Domestic
Lending Offices for its Base Rate Loans, on the one hand, and its CD Loans,
on the other hand, in which case all references herein to the Domestic
Lending Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
"Domestic Loan" means a CD Loan or a Base Rate Loan, and "Domestic
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Loans" means CD Loans or Base Rate Loans or both.
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"Domestic Subsidiary" means a Subsidiary whose principal place of
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business is located within the United States.
"Effective Date" means the date (which shall not be later than
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July 15, 2000) on which this Agreement shall become effective in accordance
with Sections 3.02 and 10.09.
"Election to Participate" means an election to participate
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substantially in the form of Exhibit K hereto.
"Election to Terminate" means an election to terminate substantially
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in the form of Exhibit L hereto.
"Eligible Subsidiary" means any Subsidiary of the Company that is
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a wholly-owned Consolidated Subsidiary of the Company and as to which an
Election to Participate shall
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have been delivered to the Administrative Agent and as to which an Election
to Terminate shall not have been delivered to the Administrative Agent.
"Environmental Laws" means any and all federal, state, local and
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foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
other governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes
into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, petroleum or petroleum products,
chemicals or industrial, toxic or hazardous substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
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as amended, or any successor statute.
"ERISA Group" means the Company and all members of a controlled
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group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company, are
treated as a single employer under Section 414(b) or (c) of the Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
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commercial banks are open for international business (including dealings in
U.S. Dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office or
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branch (or affiliate) located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office or branch (or affiliate) of
such Bank as it may hereafter designate as its Euro-Dollar Lending Office by
notice to the Company and the Administrative Agent.
"Euro-Dollar Loan" means a Syndicated Loan to be made as a
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Euro-Dollar Loan pursuant to Section 2.03 and the applicable Notice of
Borrowing.
"Euro-Dollar Margin" has the meaning set forth in Section 2.08(c).
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"Event of Default" has the meaning set forth in Section 6.01.
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"Executive Officer" means the Chief Executive Officer, the
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President, the Chief Financial Officer or the Treasurer of the Company.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
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upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business
Day next succeeding such day, provided that (i) if such day is not a Domestic
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Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on
the next succeeding Domestic Business Day, and (ii) if no such rate is so
published on such next succeeding Domestic Business Day, the Federal Funds
Rate for such day shall be the average rate quoted to the Person serving as
the Administrative Agent on such day on such transactions as determined by
the Administrative Agent.
"Finance Committee" means the Finance Committee established by the
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Board of Directors.
"Fixed Rate Borrowing" means a Borrowing consisting of Fixed Rate
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Loans.
"Fixed Rate Loans" means CD Loans, Euro-Dollar Loans, Money Market
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Loans (excluding Money Market LIBOR Loans bearing interest at the Base Rate
pursuant to Section 8.01(a)) or Negotiated Rate Loans or any combination of
the foregoing.
"Funded Debt" means, as of any date, without duplication, all
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Indebtedness, and all Debt, whether or not for money borrowed, evidenced
by a bond, debenture, note or similar instrument or by an agreement, which
Indebtedness or Debt (i) has a maturity of more than twelve months from the
date as of which the amount thereof is to be determined, (ii) has a maturity
of twelve months or less, but by its terms is renewable or extendible beyond
twelve months from such date at the option of the borrower or issuer without
the consent of the lender or holder and subject only to conditions which the
borrower or issuer is then capable of fulfilling or (iii) is classified as
"long-term indebtedness" in the Company's financial statements delivered to
the Banks pursuant to Section 5.01(a).
"Guarantee" of any Person means any obligation, contingent or
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otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person or in any manner providing for the payment of any Debt of any
other Person or otherwise protecting the holder of any such Debt against loss
(whether by agreement to keep-well, to maintain minimum net worth, to
purchase assets, goods, securities or services, to take-or-pay or otherwise);
provided that the term Guarantee shall not include endorsements for
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collection or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a correlative meaning.
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"Guaranty Fee Agreement" means the Guaranty Fee Agreement dated as
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of June 30, 2000, between the Company and ABI in the form of Exhibit J hereto.
"Indebtedness" of any Person means any indebtedness of such Person
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representing money borrowed.
"Index Debt" means senior, unsecured, long-term Indebtedness of the
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Company that is not supported by any letter of credit, guarantee (other than
a guarantee by ABI) or other credit enhancement.
"Interest Period" means:
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(1) with respect to each CD Loan, the period commencing on the date
of such Loan and ending 30, 60, 90 or 180 days thereafter, as the Company may
elect in the applicable Notice of Borrowing; provided that:
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(a) any Interest Period which would otherwise end on a day which
is not a Domestic Business Day shall be extended to the next succeeding
Domestic Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
provided further, however, that if any such Interest Period would be less
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than 30 days, the Loan for such Interest Period shall be a Base Rate Loan;
(2) with respect to each Euro-Dollar Loan, the period commencing on
the date of such Loan and ending seven days, fourteen days or one, two,
three, six or, with the consent of each Bank, twelve months thereafter, as
the Company may elect in the applicable Notice of Borrowing; provided that:
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(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such succeeding Euro-Dollar
Business Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period (other than an Interest Period having
a duration of seven or fourteen days) which begins on the last
Euro-Dollar 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, subject to clause (c) of this
definition, end on the last Euro-Dollar Business Day of a calendar
month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
provided further, however, that if any such Interest Period would be less
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than seven days, the Loan for such Interest Period shall be a Base Rate Loan;
(3) with respect to each Base Rate Loan, the period commencing on
the date of such Loan and ending not less than one day thereafter, as the
Company may elect in the applicable Notice of Borrowing; provided that:
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(a) any Interest Period which would otherwise end on a day which
is not a Domestic Business Day shall be extended to the next succeeding
Domestic Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date
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shall end on the Termination Date;
(4) with respect to each Money Market Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than seven days), as the Company may elect in
accordance with Section 2.04; provided that:
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(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless, in the case of a Money
Market LIBOR Borrowing, such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date; and
(5) With respect to each Negotiated Rate Loan, such Interest Period
(ending on a Euro-Dollar Business Day not falling after the Termination Date)
as may be agreed between the Company and the Bank making such Loan.
"Lending Office" means, as to any Bank, its Domestic Lending Office,
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its Euro-Dollar Lending Office or its Money Market Lending Office, as the
context may require.
"Level I Pricing Period" has the meaning set forth in Section 2.16.
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"Level II Pricing Period" has the meaning set forth in Section 2.16.
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"LIBO Rate" has the meaning set forth in Section 2.08(c).
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"LIBOR Auction" means a solicitation of Money Market Quotes setting
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forth Money Market Margins based on the LIBO Rate pursuant to Section 2.04.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
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charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, the Company or any of its
Subsidiaries shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"Loan" means a Domestic Loan, a Euro-Dollar Loan, a Negotiated Rate
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Loan or a Money Market Loan, and "Loans" means Domestic Loans, Euro-Dollar
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Loans, Negotiated Rate Loans, Money Market Loans or any of the foregoing.
"Material Plan" means a Plan having aggregate Unfunded Liabilities
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in excess of $100,000,000.
"Maturity Date" in respect of each Loan, has the meaning set forth
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in Section 2.07.
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"Money Market Absolute Rate" has the meaning set forth in Section
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2.04(d).
"Money Market Absolute Rate Loan" means a Loan made pursuant to an
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Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
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Lending Office or such other office, branch or affiliate of such Bank as it
may hereafter designate as its Money Market Lending Office by notice to the
Company and the Administrative Agent; provided that any Bank may from time to
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time by notice to the Company and the Administrative Agent designate separate
Money Market Lending Offices for its Money Market LIBOR Loans, on the one
hand, and its Money Market Absolute Rate Loans, on the other hand, in which
case all references herein to the Money Market Lending Office of such Bank
shall be deemed to refer to either or both of such offices, as the context
may require.
"Money Market LIBOR Loan" means a Loan made pursuant to a LIBOR
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Auction (including such a Loan bearing interest at the Base Rate pursuant to
Section 8.01(a)).
"Money Market Loan" means a Money Market Absolute Rate Loan or a
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Money Market LIBOR Loan.
"Money Market Margin" has the meaning set forth in Section 2.04(d).
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"Money Market Quote" means an offer by a Bank to make a Money Market
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Loan in accordance with Section 2.04.
"Moody's" means Xxxxx'x Investors Service and its successors.
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"Multiemployer Plan" means an employee pension benefit plan subject
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to Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then
making or accruing an obligation to make contributions or has within the
preceding five plan years made contributions, including for these purposes
any entity which ceased to be a member of the ERISA Group during such five
year period.
"Negotiated Rate Loan" means a Loan made by a Bank to a Borrower
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which is identified (by notice from the Bank or the Company to the
Administrative Agent) as a Loan made pursuant to Section 2.05.
"Net Tangible Assets" means total assets of the Company and its
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Restricted Subsidiaries, including net investment in Unrestricted
Subsidiaries, after deducting therefrom (a) all current liabilities of the
Company and its Restricted Subsidiaries (excluding any thereof constituting
Funded Debt), (b) all goodwill, trade names, trademarks, patents, copyrights,
franchises, unamortized debt discount and expense, organization and
developmental expenses and other intangibles of the Company and its
Restricted Subsidiaries, and (c) all increases in the book values of any
assets above the book values thereof as of March 31, 2000 as a result of the
revaluation of such assets, all determined on a basis consistent with that on
which such amounts were determined in preparing the most recent balance sheet
of the Company and its Consolidated
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Subsidiaries delivered to the Banks pursuant to Section 5.01(a)(i) or
(ii); provided that any items constituting deferred income taxes, deferred
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investment tax credits or other similar items shall not be taken into account
as a liability or as a deduction from or adjustment to total assets.
"Non-excluded Taxes" has the meaning set forth in Section 2.15.
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"Note" means a promissory note of a Borrower, substantially in the
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form of Exhibit A hereto, evidencing the obligation of such Borrower to repay
its Loans, and "Notes" means all such promissory notes issued hereunder.
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"Notice of Borrowing" means a Notice of Syndicated Borrowing as
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defined in Section 2.03(a) or a Notice of Money Market Borrowing as defined
in Section 2.04(f).
"Packaging Business" means the assets identified as the "Packaging
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Segment" in the most recent financial statements delivered pursuant to
Section 5.01(a) and any assets substantially related to such assets that are
acquired after the date of such financial statements.
"Packaging Business Divestiture" means (i) the distribution (in the
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form of a dividend) to stockholders of the Company of the capital stock of a
Subsidiary or Subsidiaries substantially all of the assets of which
consist(s) of all or any portion of the Packaging Business and (ii) the
transfer of the capital stock of a Subsidiary or Subsidiaries substantially
all of the assets of which consist(s) of all or any portion of the Packaging
Business, or the transfer of all or any portion of the Packaging Business,
the consideration for such transfer (including the liabilities assumed
related thereto) being not less than the fair market value (as reasonably
determined by the Company) of such stock or assets; provided that in each
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such case at the time of and immediately after such distribution or transfer
the Index Debt shall be rated A- or better by S&P and A3 or better by
Moody's.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
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succeeding to any or all of its functions under ERISA.
"Person" means an individual, sole proprietorship, corporation,
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partnership, joint venture, trust, unincorporated organization, mutual
company, joint stock company, estate, union, employee organization, a
government or any agency or political subdivision thereof.
"Plan" means an employee pension benefit plan (other than a
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Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards of Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees
of any member of the ERISA Group or (ii) has at any time within the preceding
five years been maintained, or contributed to, by any member of the ERISA
Group for employees of any member of the ERISA Group, as determined from time
to time within such period.
"Pricing Period" has the meaning set forth in Section 2.16.
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"Prime Rate" means the rate of interest per annum publicly announced
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from time
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to time by the Person serving as the Administrative Agent as its prime rate
in effect at its principal office in New York City. Each change in the Prime
Rate shall be effective from and including the date such change is publicly
announced as being effective. The Base Rate shall be adjusted automatically
on and as of the effective date of each change in the Prime Rate.
"Principal Plant" shall mean (a) any brewery or manufacturing,
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processing or packaging plant owned by the Company or any of its Subsidiaries
on the date hereof or hereafter constructed or acquired by the Company or any
of its Subsidiaries and located within the United States (but shall not
include (i) any brewery or plant which the Finance Committee has determined
is not of material importance to the total business conducted by the Company
and its Subsidiaries, (ii) any plant which the Company shall have determined
is used primarily for transportation, marketing or warehousing or (iii) at
the option of the Company, any plant that (A) does not constitute a part of
the brewing operations of the Company and its Subsidiaries and (B) has a net
book value, as reflected on the then most recent balance sheet delivered by
the Company to the Banks under Section 5.01(a), of not more than
$100,000,000, provided that any such determination, designation or election
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pursuant to clauses (i) through (iii) of this definition shall be evidenced
by a certificate of an Executive Officer delivered to the Administrative
Agent) and (b) any other facility owned by the Company or any of its
Subsidiaries which the Company shall designate as a Principal Plant.
Following any determination, designation or election referred to herein that
a brewery or plant shall not be included as a Principal Plant, the Company
may, at its option (to be evidenced by a certificate of an Executive Officer
delivered to the Administrative Agent), elect that such facility subsequently
be included as a Principal Plant.
"Pro Rata Percentage" means, in respect of any Bank, the percentage
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obtained by dividing the Commitment of such Bank by the Total Commitment.
"Reference Banks" means Chase, Citibank, N.A., Bank One, NA and such
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other banks as may be appointed pursuant to Section 10.06(d).
"Refunding Borrowing" means a Borrowing which, after application of
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the proceeds thereof, results in no net increase in the outstanding principal
amount of the Loans made by any Bank.
"Required Banks" means at any time Banks having at least 51% of the
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Total Commitment or, if the Commitments shall have been terminated, holding
at least 51% of the aggregate unpaid principal amount of the Loans.
"Restricted Subsidiary" means (i) any Subsidiary (including ABI) of
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the Company which owns or operates a Principal Plant, except any Subsidiary
incorporated or organized, or the principal place of business of which is
located, outside the present fifty states of the United States and the
District of Columbia, (ii) any Subsidiary that owns, directly or indirectly,
any stock of any Restricted Subsidiary, and (iii) any other Subsidiary of the
Company incorporated or organized within the present fifty states of the
United States and the District of Columbia which the Finance Committee shall
elect to be treated as a Restricted Subsidiary, until such time as the
Finance Committee may elect that such other Subsidiary shall no longer be a
Restricted Subsidiary, successive such elections being permitted without
restriction, provided that any such
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election pursuant to clause (iii) of this definition shall be evidenced by a
certificate of an Executive Officer delivered to the Administrative Agent and
shall be effective as of the date specified in the applicable certification.
"Revolving Credit Period" means the period from and including the
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Effective Date to and including the Termination Date or, if earlier, the date
on which the Total Commitment is terminated.
"S&P" means Standard & Poor's Ratings Group and its successors.
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"Subsidiary" means, with respect to any Person, any corporation of
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which more than 50% of the issued and outstanding Voting Stock is at the time
directly or indirectly owned by such Person.
"Syndicated Loan" means a Base Rate Loan, a CD Loan or a Euro-Dollar
---------------
Loan, as the case may be.
"Tax" means any federal, state, county, municipal or foreign tax,
---
assessment or other governmental charge or levy upon a Person or upon its
assets, revenues, income or profits.
"Termination Date" means June 30, 2005.
----------------
"Total Commitment" means, at any date, the aggregate Commitments of
----------------
all the Banks as of such date.
"United States" means the United States of America.
-------------
"Unfunded Liabilities" means the amount (if any) of unfunded current
--------------------
liabilities determined under Section 412(l)(1)(8)(A) of the Code without
regard to Section 412(l)(1)(8)(E) thereof, determined as of the most recent
valuation date for such Plan, but only if the Company knows or should have
known of such excess and to the extent that such excess represents a
potential liability of a member of the ERISA Group.
"Unrestricted Subsidiary" means any Subsidiary of the Company which
-----------------------
is not a Restricted Subsidiary.
"U.S. Dollars" means dollars in lawful currency of the United
------------
States.
"Voting Stock" means shares of stock of a corporation of any class or
------------
classes (however designated) having ordinary voting power for the election of
a majority of the members of the board of directors (or other governing body)
of such corporation, other than stock having such power only by reason of the
happening of a contingency.
Section 1.02. Accounting Terms and Determinations. Unless otherwise
-----------------------------------
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared, in
accordance with accounting principles generally accepted in the United States
as in
14
13
effect from time to time, applied on a basis consistent (except for changes
approved by the Company's independent public accountants) with the most
recent audited consolidated financial statements of the Company and its
Consolidated Subsidiaries delivered to the Banks; provided that, if the
--------
Company notifies the Administrative Agent that the Company wishes to amend
any provision of this Agreement to eliminate the effect of any change in
generally accepted accounting principles on the operation of such provision
(or if the Administrative Agent notifies the Company that the Required Banks
wish to amend any such provision for such purpose), then compliance with such
provision shall be determined on the basis of generally accepted accounting
principles in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either such notice is
withdrawn or such amendment becomes effective in accordance with this
Agreement.
Section 1.03. Terms Generally. The definitions of terms herein
---------------
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without
limitation". The word "will" shall be construed to have the same meaning and
effect as the word "shall". Unless the context requires otherwise (a)any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b)any reference herein to any Person shall be construed
to include such Person's successors and assigns, (c)the words "herein",
"hereof" and "hereunder", and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d)all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement and (e)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, securities, accounts and contract rights.
ARTICLE II
THE CREDITS
Section 2.01. The Commitments. Upon the terms and subject to the
---------------
conditions of, and in reliance on the representations and warranties made
under, this Agreement, the Banks severally agree to make Syndicated Loans to
the Company or to one or more Eligible Subsidiaries from time to time on or
prior to the Termination Date.
Section 2.02. The Syndicated Loans. During the Revolving Credit
--------------------
Period, each Bank severally agrees, on the terms and subject to the
conditions set forth in this Agreement, to lend to the Company or to one or
more Eligible Subsidiaries from time to time Syndicated Loans; provided that
--------
the aggregate principal amount of Syndicated Loans by such Bank at any one
time outstanding shall not exceed the amount of its Commitment at such time
less such Bank's Pro Rata Percentage of the sum of the aggregate principal
amount of Negotiated Rate
15
14
Loans outstanding at such time and Money Market Loans outstanding at such
time (in each case, regardless of the amount, if any, of Money Market Loans
or Negotiated Rate Loans actually made by such Bank and outstanding at such
time). Within the foregoing limits, the Borrowers may borrow under this
Section, repay, and, to the extent permitted under Section 2.11, prepay and
reborrow under this Section at any time during the Revolving Credit Period.
The failure of any Bank to make any Syndicated Loan required under this
Agreement shall not release any other Bank from its obligation to make
Syndicated Loans as provided herein.
Section 2.03. Syndicated Borrowings. (a) The Company shall give
---------------------
notice (a "Notice of Syndicated Borrowing") to the Administrative Agent not
------------------------------
later than (1) 1:00 P.M. (New York City time) on the proposed date of each
Base Rate Borrowing, (2) 12:00 Noon (New York City time) on the Domestic
Business Day before each CD Borrowing and (3) 12:00 Noon (New York City time)
on the third Euro-Dollar Business Day before each Euro-Dollar Borrowing;
provided, however, that, if the Company shall not have given to the
-------- -------
Administrative Agent a Notice of Syndicated Borrowing for a Refunding
Borrowing in respect of a Syndicated Loan or Syndicated Loans, or part
thereof, by the close of business on the third Domestic Business Day prior to
the Maturity Date thereof, then such Syndicated Loan or Syndicated Loans or
part thereof shall come due on such Maturity Date. Each Notice of Syndicated
Borrowing shall specify:
(i) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Domestic Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing, which shall be an
aggregate principal amount of $10,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in the aggregate
amount of the unused Total Commitment),
(iii) whether the Loans comprising such Borrowing are to be
CD Loans, Base Rate Loans or Euro-Dollar Loans,
(iv) the duration of the initial Interest Period applicable to
such Borrowing, subject to the provisions of the definition of Interest
Period, and
(v) if the Borrower of such Borrowing is not the Company, the name
of the Eligible Subsidiary that will be the Borrower of such Borrowing.
A Notice of Syndicated Borrowing shall not be required in connection with a
Base Rate Borrowing pursuant to Section 8.01. A Notice of Syndicated
Borrowing, once given, shall not be revocable by the Company or the
applicable Borrower.
(b) Upon receipt of a Notice of Syndicated Borrowing given to it,
the Administrative Agent shall promptly notify each Bank of the contents
thereof and of such Bank's ratable share of such Borrowing.
(c) Each Syndicated Borrowing shall be made from the several Banks
ratably in
16
15
proportion to their respective Commitments.
(d) Not later than 2:00 P.M. (New York City time) on the date of
such Borrowing, in the case of a Base Rate Borrowing, or 12:00 Noon (New York
City time) on the date of such Borrowing, in the case of each CD Borrowing or
Euro-Dollar Borrowing, each Bank shall (except as provided in Section 2.12)
make available its ratable share of such Borrowing, in U.S. Dollars
immediately available in New York City, to the Administrative Agent at its
address specified in or pursuant to Section 10.01. Unless the Administrative
Agent determines that any applicable condition specified in Article III has
not been satisfied, the Administrative Agent will make the funds so received
from the Banks available to the Company (for the account of the applicable
Borrower) immediately thereafter at the Administrative Agent's aforesaid
address.
(e) If any Bank makes a new Syndicated Loan hereunder on a day on
which any Borrower is required to or has elected to repay all or any part of
an outstanding Syndicated Loan from such Bank (regardless of whether such
Syndicated Loans are to the same Borrower), such Bank shall apply the
proceeds of its new Syndicated Loan to make such repayment, and only an
amount equal to the difference (if any) between the amount being borrowed and
the amount being repaid shall be made available by such Bank to the
Administrative Agent as provided in the preceding subsection (d) or be
remitted by the applicable Borrower to the Administrative Agent as provided
in Section 2.12, as the case may be, and if such Syndicated Loans are to
different Borrowers the Company shall cause appropriate payments to be made
between such Borrowers to reflect the foregoing.
(f) Unless the Administrative Agent shall have received notice from
a Bank prior to the date of any Syndicated Borrowing that such Bank will not
make available to the Administrative Agent such Bank's share of such
Borrowing, the Administrative Agent may assume that such Bank has made such
share available to the Administrative Agent on the date of such Borrowing in
accordance with subsections (d) and (e) of this Section and the
Administrative Agent may, in reliance upon such assumption, make available to
the Company (for the account of the applicable Borrower) on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made such share available to the Administrative Agent, such Bank and the
Company (for the account of the applicable Borrower) severally agree to repay
to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is
made available to the Company until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Company, a rate per annum
equal to the higher of the Federal Funds Rate and the interest rate
applicable thereto pursuant to Section 2.08 and (ii) in the case of such
Bank, the Federal Funds Rate. If such Bank shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute such
Bank's Loan included in such Borrowing for purposes of this Agreement.
Section 2.04. Money Market Borrowings. (a) The Money Market Option.
----------------------- -----------------------
The Company may, during the Revolving Credit Period, as set forth in this
Section, request the Banks to make offers to make Money Market Loans to the
Company or one or more Eligible Subsidiaries from time to time prior to the
Termination Date. The Banks may, but shall have no obligation to, make such
offers, and the Company may, but shall have no obligation to, accept
17
16
any such offers in the manner set forth in this Section.
(b) Money Market Quote Request. When the Company wishes to request
--------------------------
offers to make Money Market Loans under this Section, it shall transmit to
the Administrative Agent by telecopier a Money Market Quote Request
substantially in the form of Exhibit B hereto so as to be received by the
Administrative Agent not later than 10:00 A.M. (New York City time) on (x)
the Domestic Business Day next preceding the date of the Borrowing proposed
therein, in the case of an Absolute Rate Auction, or (y) the fourth
Euro-Dollar Business Day prior to the date of Borrowing proposed therein, in
the case of a LIBOR Auction (or, in either case, such other time or date as
the Company and the Administrative Agent shall have mutually agreed to and
shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective), specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day
in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$10,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period,
(iv) whether the Money Market Quotes requested are to set forth
a Money Market Margin or a Money Market Absolute Rate, and
(v) if the Borrower of such Borrowing is not the Company, the name
of the Eligible Subsidiary that will be the Borrower of such Borrowing.
The Company may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within four Euro-Dollar Business Days (or such other
number of days as the Company and the Administrative Agent may agree) of any
other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
----------------------------------
Money Market Quote Request, the Administrative Agent shall send to the Banks
by telecopier an Invitation for Money Market Quotes, substantially in the
form of Exhibit C hereto, which shall constitute an invitation by the Company
(on behalf of the applicable Borrower) to each Bank to submit Money Market
Quotes offering to make the Money Market Loans to which such Money Market
Quote Request relates in accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank
----------------------------------------------
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each
Money Market Quote must comply with the requirements of this subsection (d)
and must be submitted to the Administrative Agent
18
17
by telecopier at its offices specified in or pursuant to Section 10.01 not
later than (x) 10:00 A.M. (New York City time) on the third Euro-Dollar
Business Day prior to the proposed date of Borrowing, in the case of a LIBOR
Auction, or (y) 9:30 A.M. (New York City time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Company and the Administrative Agent shall have
mutually agreed to and shall have notified to the Banks not later than the
date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective); provided
that Money Market Quotes submitted by the Administrative Agent (or any
Affiliate of the Administrative Agent) in its capacity as a Bank may only be
submitted if the Administrative Agent or such Affiliate notifies the Company
of the terms of the offer or offers contained therein not later than (x) one
hour prior to the deadline for the other Banks, in the case of a LIBOR
Auction, or (y) 15 minutes prior to the deadline for the other Banks, in the
case of an Absolute Rate Auction. Subject to Articles III and VI, any Money
Market Quote so made shall be irrevocable, except (A) as provided in Section
2.04(e) or (B) with the written consent of the Administrative Agent given on
the instructions of the Company.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of each Money Market Loan for which an
offer is being made, which principal amount (w) may be greater than or
less than the Commitment of the quoting Bank, (x) must be $10,000,000
or a larger multiple of $1,000,000, (y) may not exceed the principal
amount of Money Market Loans for which offers were requested and (z) may
be subject to an aggregate limitation as to the principal amount of Money
Market Loans for which offers being made by such quoting Bank may be
accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable LIBO Rate (the "Money Market Margin") offered for such Money
-------------------
Market Loan, expressed as a percentage (specified to the nearest
1/10,000th of 1%) to be added to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest
per annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
------------
Absolute Rate") offered for each such Money Market Loan, and
-------------
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in the form of Exhibit D hereto or does
not specify all of the information required by subsection (d)(ii);
19
18
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth
in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Company. The Administrative Agent shall promptly
-----------------
notify the Company of the terms (i) of any Money Market Quote submitted by a
Bank that is in accordance with subsection (d) and (ii) of any Money Market
Quote that amends, modifies or is otherwise inconsistent with a previous
Money Market Quote submitted by such Bank with respect to the same Money
Market Quote Request. Any such subsequent Money Market Quote shall be
disregarded by the Administrative Agent unless such subsequent Money Market
Quote is submitted solely to correct a manifest error in such previous Money
Market Quote. The Administrative Agent's notice to the Company shall specify
(A) the aggregate principal amount of Money Market Loans for which offers
have been received for each Interest Period specified in the related Money
Market Quote Request, (B) the respective principal amounts and Money Market
Margins or Money Market Absolute Rates, as the case may be, so offered and
(C) if applicable, any limitation on the aggregate principal amount of Money
Market Loans for which offers in any single Money Market Quote may be
accepted.
(f) Acceptance and Notice by Company. Not later than (x) 10:30 A.M.
--------------------------------
(New York City time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction, or (y) 11:00 A.M. (New York City time) on the third
Euro-Dollar Business Day prior to the proposed date of Borrowing, in the case
of a LIBOR Auction (or such other time and date as the Company and the
Administrative Agent shall have mutually agreed to and shall have notified to
the Banks not later than the date of the Money Market Quote Request for the
first LIBOR Auction or Absolute Rate Auction for which such change is to be
effective), the Company (on behalf of the applicable Borrower) shall notify
the Administrative Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection (e). Failure of the Company to notify
the Administrative Agent of its acceptance or non-acceptance of offers by
such applicable time shall constitute non-acceptance of such offers by the
Company. In the case of acceptance, such notice (a "Notice of Money Market
----------------------
Borrowing"), which shall be in the form of Exhibit E hereto, shall specify
---------
the aggregate principal amount of offers for each Interest Period that are
accepted. The Company (on behalf of the applicable Borrower) may accept any
Money Market Quote in whole or in part; provided that:
--------
(i) the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in the related Money
Market Quote Request and may not be in an amount that would result in the
aggregate principal amount of the outstanding Loans exceeding the Total
Commitment (after giving effect to all borrowings and repayments of Loans
then being made),
(ii) the aggregate principal amount of each Money Market Borrowing
must be $10,000,000 or a larger multiple of $1,000,000,
20
19
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Absolute Rates or Money Market Margins, as the
case may be, and
(iv) the Company may not accept any offer that is described
in subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by two
----------------------------------
or more Banks with the same Money Market Margin or Money Market Absolute
Rate, as the case may be, and for a greater aggregate principal amount than
the principal amount (after deducting the principal amount of the lower
priced offers accepted by the Company) in respect of which offers are
accepted for the related Interest Period, the principal amount of Money
Market Loans in respect of which such offers are accepted shall be allocated
by the Administrative Agent among such Banks as nearly as possible (in
multiples of such amount not less than $1,000,000, as the Administrative
Agent may deem appropriate) in proportion to the aggregate principal amounts
of such offers. Determinations by the Administrative Agent of the amounts of
Money Market Loans to be made by each Bank shall be conclusive in the absence
of manifest error.
(h) Notice to Banks; Funding of Money Market Loans. (i) Upon
----------------------------------------------
receipt of a Notice of Money Market Borrowing by the Administrative Agent,
such Notice of Money Market Borrowing shall not thereafter be revocable by
the Company or the applicable Borrower. The Administrative Agent shall
promptly notify each Bank of the contents of each Notice of Money Market
Borrowing and of such Bank's share (if any) of such Borrowing.
(ii) Not later than 12:00 Noon (New York City time) on the date
of each Money Market Borrowing, each Bank participating therein shall
(except as provided in clause (iii) of this subsection (h)) make
available its share of such Money Market Borrowing, in U.S. Dollars
immediately available in New York City, to the Administrative Agent at
its address specified in or pursuant to Section 10.01. Unless the
Administrative Agent determines that any applicable condition specified
in Article III has not been satisfied, the Administrative Agent will make
the funds so received from the Banks available to the Company (for the
account of the applicable Borrower) at the Administrative Agent's
aforesaid address.
(iii) If any Bank makes a new Money Market Loan hereunder on a day
on which any Borrower is to repay all or any part of an outstanding Loan
from such Bank, such Bank shall apply the proceeds of its new Money
Market Loan to make such repayment, and only an amount equal to the
difference (if any) between the amount being borrowed and the amount
being repaid shall be made available by such Bank to the Administrative
Agent as provided in clause (ii) of this subsection (h) or remitted by
the applicable Borrower to the Administrative Agent as provided in
Section 2.12, as the case may be, and if such Loans are to different
Borrowers the Company shall cause appropriate payments to be made between
such Borrowers to reflect the foregoing.
(iv) Unless the Administrative Agent shall have received notice
from a Bank prior to the date of any Money Market Borrowing that such
Bank will not make available to the Administrative
21
20
Agent such Bank's share of such Borrowing, the Administrative Agent may
assume that such Bank has made such share available to the Administrative
Agent on the date of such Borrowing in accordance with the preceding
clauses (ii) and (iii) of this subsection (h) and the Administrative
Agent may, in reliance upon such assumption, make available to the
Company (for the account of the applicable Borrower) on such date a
corresponding amount. If and to the extent that such Bank shall not have
so made such share available to the Administrative Agent, such Bank and
the Company (for the account of the applicable Borrower) severally agree
to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from
the date such amount is made available to the Company until the date such
amount is repaid to the Administrative Agent, at (A) in the case of the
Company, a rate per annum equal to the higher of the Federal Funds Rate
and the interest rate applicable thereto pursuant to Section 2.08 and (B)
in the case of such Bank, the Federal Funds Rate. If such Bank shall
repay to the Administrative Agent such corresponding amount, such amount
so repaid shall constitute such Bank's Loan included in such Borrowing
for purposes of this Agreement.
Section 2.05. Negotiated Rate Loans. During the Revolving Credit
---------------------
Period, the Company may make arrangements with one or more of the Banks for
Negotiated Rate Loans to be made by such Bank or Banks, to such Borrowers, at
such interest rates, in such currency or currencies and on such other terms
and conditions as may be agreed upon between the Company and such Bank or
Banks; provided, however, that the Company shall not borrow or permit any
-------- -------
Eligible Subsidiary to borrow any Negotiated Rate Loan in an amount that
would result in the aggregate principal amount of the outstanding Loans
exceeding the Total Commitment (after giving effect to all borrowings and
repayments of Loans then being made). The Company shall promptly notify the
Administrative Agent of the making of any such Negotiated Rate Loan, the
aggregate principal amount thereof, the Interest Period applicable thereto,
the currency or currencies in which such loan is denominated (if other than
U.S. Dollars) and of any prepayment or repayment thereof. In addition, any
Bank that makes a Negotiated Rate Loan to any Borrower in a currency other
than U.S. Dollars shall promptly notify the Administrative Agent of the U.S.
Dollar equivalent of such Negotiated Rate Loan (as determined by such Bank
based upon its spot buying rate), and the U.S. Dollar equivalent amount so
determined and notified to the Administrative Agent shall thereafter be
utilized for purposes of determining the amount of unused Commitments. Each
such Negotiated Rate Loan shall be in the principal amount of $1,000,000 (or
its equivalent in another currency) or a larger multiple thereof (or its
equivalent in another currency).
Section 2.06. Evidence of Debt. (a) Each Bank shall maintain in
----------------
accordance with its usual practice records evidencing the indebtedness of
each Borrower to such Bank resulting from each Loan made by such Bank,
including the amounts of principal and interest payable and paid to such Bank
from time to time hereunder.
(b) The Administrative Agent shall maintain records in which it
shall record (i)the amount of each Loan made hereunder and each Interest
Period therefor, (ii)the amount of any principal or interest due and payable
or to become due and payable from each Borrower to each Bank hereunder and
(iii)the amount of any sum received by the Administrative Agent
22
21
hereunder for account of the Banks and each Bank's share thereof.
(c) The entries made in the records maintained pursuant to
subsection(a) or(b) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
--------
failure of any Bank or the Administrative Agent to maintain such records or
any error therein shall not in any manner affect the obligation of any
Borrower to repay the Loans in accordance with the terms of this Agreement.
(d) Any Bank may request that the Loans of such Bank to any Borrower
be evidenced by a single Note payable by such Borrower to the order of such
Bank for the account of its applicable Lending Office in an amount equal to
the aggregate unpaid principal amount of such Bank's Loans. In such event,
such Borrower shall prepare, execute and deliver to such Bank a Note payable
to such Bank (or, if requested by such Bank, to such Bank and its registered
assigns). Thereafter, the Loans evidenced by such Note and interest thereon
shall at all times (including after assignment pursuant to Section 10.06) be
represented by one or more Notes in such form payable to the payee named
therein (or, if such Note is a registered note, to such payee and its
registered assigns).
Section 2.07. Maturity of Loans. Each Loan included in any
-----------------
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing
(such last day being referred to in this Agreement as the "Maturity Date" of
-------------
each such Loan).
Section 2.08. Interest Rates. (a) Each Base Rate Loan shall bear
--------------
interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due, at a rate per annum equal to the
Base Rate for such day. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than
three months, at intervals of three months after the first day thereof. Any
overdue principal of and overdue interest on any Base Rate Loan and all other
amounts hereunder not paid when due (other than principal and interest on
Loans subject to subsections (b), (c) and (d) of this Section) shall bear
interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 1% plus the rate otherwise applicable to Base Rate Loans
for such day.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each Interest Period applicable thereto, at a rate per
annum equal to the sum of the CD Margin plus the Adjusted CD Rate in respect
of such Interest Period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than
90 days, at intervals of 90 days after the first day thereof. Any overdue
principal of or overdue interest on any CD Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 1%
plus the rate applicable to Base Rate Loans for such day.
"CD Margin" applicable to any CD Loan outstanding on any day means
---------
(i) if such day falls within a Level I Pricing Period, 0.240% and (ii) if
such day falls within a Level II Pricing Period, 0.375%. The CD Margin shall
be adjusted automatically on and as of the effective date of any change
between Pricing Periods, as provided in Section 2.16.
23
22
The "Adjusted CD Rate" applicable to any Interest Period means a
----------------
rate per annum determined pursuant to the following formula:
ACDR [ CDBR ] */
-
[---------------] + AR
[ 1.00 - CDRP ]
ACDR = Adjusted CD Rate for such Interest Period
CDBR = CD Base Rate for such Interest Period
CDRP = CD Reserve Percentage
AR = Assessment Rate
[FN]
-----------------------------
*/ The amount in brackets being rounded upward, if necessary, to the
-
next higher 1/100 of 1%.
The "CD Base Rate" means for any Interest Period the average per
------------
annum rate of interest (rounded upward, if necessary, to the next higher
1/100 of 1%) bid at 10:00 A.M. (New York City time) (or as soon thereafter as
it may be practicable to determine) on the first day of such Interest Period
by two or more New York certificate of deposit dealers of recognized standing
(as reported by each Reference Bank to the Administrative Agent) for the
purchase at face value from each Reference Bank of its certificates of
deposit in an amount comparable to the principal amount of the CD Loan of
such Reference Bank to which such Interest Period applies and with a maturity
comparable to such Interest Period.
"CD Reserve Percentage" means for any day that percentage (expressed
---------------------
as a decimal) which is in effect on such day as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, without limitation, any basic,
supplemental or emergency reserves) for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion U.S. Dollars in
respect of new non-personal time deposits in U.S. Dollars in New York City
having a maturity comparable to the related Interest Period and in an amount
of $100,000 or more. The Adjusted CD Rate shall be adjusted automatically on
and as of the effective date of each change in the CD Reserve Percentage.
"Assessment Rate" means for any Interest Period the net annual
---------------
assessment rate (rounded upward, if necessary, to the next higher 1/100 of
1%) actually incurred by the Person serving as the Administrative Agent to
the Federal Deposit Insurance Corporation (or any successor) for such
Corporation's (or such successor's) insuring time deposits at the offices of
the Person serving as the Administrative Agent in the United States during
the most recent period for which such rate has been determined prior to the
commencement of such Interest Period.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each Interest Period applicable thereto, at a
rate per annum equal to the sum of the Euro-Dollar Margin plus the Adjusted
LIBO Rate in respect of such Interest Period. Such
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interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of
three months after the first day thereof.
The "Euro-Dollar Margin" applicable to any Euro-Dollar Loan
------------------
outstanding on any day means (i) if such day falls within a Level I Pricing
Period, 0.115% and (ii) if such day falls within a Level II Pricing Period,
0.250%. The Euro-Dollar Margin shall be adjusted automatically on and as of
the effective date of any change between Pricing Periods, as provided in
Section 2.16.
The "Adjusted LIBO Rate" applicable to any Interest Period means a
------------------
rate per annum equal to the quotient (rounded upwards, if necessary, to the
next higher 1/100 of 1%) obtained by dividing (i) the LIBO Rate in respect of
such Interest Period by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
The "LIBO Rate" means, for the Interest Period for any Euro-Dollar
---------
Borrowing, the rate appearing on Page 3750 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations
of interest rates applicable to U.S. Dollar deposits in the London interbank
market) at approximately 11:00 A.M., London time, two Euro-Dollar Business
Days prior to the commencement of such Interest Period, as the rate for the
offering of U.S. Dollar deposits with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for any
reason, then the LIBO Rate for such Interest Period shall be the rate at
which U.S. Dollar deposits of $10,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the Person
serving as the Administrative Agent in immediately available funds in the
London interbank market at approximately 11:00 A.M., London time, two
Euro-Dollar Business Days prior to the commencement of such Interest Period.
The "Euro-Dollar Reserve Percentage" means for any day that
------------------------------
percentage (expressed as a decimal) which is in effect on such day as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank
of the Federal Reserve System in New York City with deposits exceeding five
billion U.S. Dollars in respect of "Eurocurrency liabilities" (as such
liabilities are referred to in Regulation D of the Board of Governors of the
Federal Reserve System) (or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of such a
bank to United States residents). The Adjusted LIBO Rate shall be adjusted
automatically on and as of the effective date of each change in the
Euro-Dollar Reserve Percentage.
(d) Any overdue principal of or overdue interest on any Euro-Dollar
Loan shall bear interest, payable on demand, for each day until paid, at a
rate per annum equal to (i) the sum of 1% plus the rate otherwise applicable
to such Euro-Dollar Loan or (ii) if the circumstances described in subsection
(a) or (b) of Section 8.01 shall exist, the sum of 1% plus the rate
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applicable to Base Rate Loans for such day.
(e) Subject to Section 8.01(a), each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the LIBO
Rate for such Interest Period (determined in accordance with Section 2.08(c)
as if the related Money Market LIBOR Borrowing were a Euro-Dollar Borrowing)
plus (or minus) the Money Market Margin quoted by the Bank making such Loan
in accordance with Section 2.04. Each Money Market Absolute Rate Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the Money Market
Absolute Rate quoted by the Bank making such Loan in accordance with Section
2.04. Such interest shall be payable for each Interest Period on the last
day thereof and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof. Any overdue principal
of or overdue interest on any Money Market Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 1%
plus the rate applicable to Base Rate Loans for such day.
(f) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder (other than interest rates applicable to
Negotiated Rate Loans). The Administrative Agent shall give prompt notice to
the Company and the participating Banks by telecopier of each interest rate
so determined, and its determination thereof shall be conclusive in the
absence of manifest error. If the Company is not the Borrower of the
applicable Loan for which such interest rate is so determined, the Company
will be responsible for notifying the applicable Borrower of such interest
rate.
(g) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated hereby. If any
Reference Bank does not furnish a timely quotation, the Administrative Agent
shall determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or Reference Banks or,
if none of such quotations is available on a timely basis, the provisions of
Section 8.01 shall apply.
Section 2.09. Fees. (a) Facility Fee. The Company shall pay to the
---- ------------
Administrative Agent, for the account of each Bank, facility fees for each
day during the Revolving Credit Period, at a rate equal to (a) if such day
falls within a Level I Pricing Period, 0.060% per annum or (b) if such day
falls within a Level II Pricing Period, 0.125% per annum, in each case of
such Bank's Commitment (whether used or unused) for such day. Such facility
fees shall be payable quarterly in arrears on each March 31, June 30,
September 30 and December 31 and on the Termination Date.
(b) Utilization Fee. The Company shall pay to the Administrative
---------------
Agent, for the account of each Bank, a utilization fee at a rate equal to
0.075% per annum on the amount of the outstanding Loans of such Bank for each
day that the aggregate principal amount of outstanding Loans (other than
Money Market Loans and Negotiated Rate Loans) hereunder shall exceed 50% of
the aggregate Commitments. Such utilization fees shall be payable quarterly
in arrears on each March 31, June 30, September 30 and December 31 and on the
Termination Date.
Section 2.10. Termination and Reduction of Commitments. (a) The
----------------------------------------
Company
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may, upon at least three Domestic Business Days' notice to the Administrative
Agent, terminate entirely at any time, or reduce from time to time by an
aggregate amount of $25,000,000 or any larger multiple of $5,000,000, the
Total Commitment in excess of the outstanding aggregate principal amount of
the Loans. Each reduction of the Total Commitment shall reduce the unused
Commitments of the Banks in proportion to their respective Commitments and
shall be permanent. If the Total Commitment is terminated in its entirety,
all accrued facility and utilization fees shall be payable on the effective
date of such termination.
(b) The Total Commitment (unless already terminated pursuant to
subsection (a) of this Section) shall terminate on the Termination Date, and
any Loans then outstanding (together with accrued interest thereon) shall be
due and payable on such date.
Section 2.11. Optional Prepayments. (a) Any Borrower may, upon
--------------------
notice by the Company (on behalf of such Borrower) to the Administrative
Agent received by the Administrative Agent not later than 10:00 A.M. (New
York City time) on the Domestic Business Day prior to the date of prepayment,
prepay, without penalty or premium, any Base Rate Borrowing (or any Money
Market Borrowing bearing interest at the Base Rate pursuant to Section
8.01(a)) in whole at any time, or from time to time in part in principal
amounts aggregating $10,000,000 or any larger multiple of $1,000,000, by
paying the principal amount to be prepaid together with accrued interest on
such prepaid amounts to the date of prepayment. Each such optional
prepayment shall be applied to prepay ratably the Loans of the several Banks
included in such Borrowing.
(b) Subject to Section 2.13, any Borrower may upon at least three
Euro-Dollar Business Days' notice by the Company (on behalf of such Borrower)
to the Administrative Agent, prepay any CD Borrowing or Euro-Dollar Borrowing
in whole at any time, or from time to time in part in principal amounts
aggregating $10,000,000 or any larger multiple of $1,000,000, by paying the
principal amount to be prepaid together with accrued interest on such prepaid
amounts to the date of prepayment. Each such optional prepayment shall be
applied to prepay ratably the Loans of the several Banks included in such
Borrowing.
(c) Each such notice of prepayment shall specify which outstanding
Borrowing (or portion thereof) is to be prepaid in connection therewith.
Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share of such prepayment, and such notice shall
not thereafter be revocable by the Company or the applicable Borrower.
(d) Money Market Loans (except such as bear interest at the Base
Rate pursuant to Section 8.01(a)) and Negotiated Rate Loans of any Bank may
not be prepaid without the consent of such Bank.
Section 2.12. General Provisions as to Payments. (a) Each Borrower
---------------------------------
shall make each payment of principal of, and interest on, its Syndicated
Loans and Money Market Loans and the Company shall make each payment of
facility and utilization fees and all other amounts payable hereunder (other
than Negotiated Rate Loans), not later than 11:00 A.M. (New York City time)
on the date when due, in U.S. Dollars immediately available in New York City,
to the
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Administrative Agent at its address referred to in Section 10.01. The
Administrative Agent will promptly distribute to each Bank its ratable share
of each such payment received by the Administrative Agent for the account of
the Banks. Each Borrower shall make each payment of principal of, and
interest on, its Negotiated Rate Loans, not later than 11:00 A.M. (local time
at the relevant Domestic Lending Office) on the date when due, to the Bank
which made such Loan at its Domestic Lending Office, in U.S. Dollars
immediately available in the city in which such Bank's Domestic Lending
Office is located; provided that all payments of principal of and interest on
--------
any Negotiated Rate Loan that is denominated in a currency other than U.S.
Dollars shall be payable in the currency in which such Negotiated Rate Loan
is denominated and at such location as agreed between the Company and such
Bank. Whenever any payment of principal of, or interest on, or the Domestic
Loans or any payment of facility and utilization fees shall be due on a day
which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment
of principal of, or interest on, the Euro-Dollar Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day unless as a
result thereof it would fall in the next calendar month, in which case such
date for payment shall be advanced to the next preceding Euro-Dollar Business
Day. Whenever any payment of principal of, or interest on, the Money Market
Loans shall be due on a day which is not a Euro-Dollar Business Day, the date
for payment thereof shall be extended to the next succeeding Euro-Dollar
Business Day. If the date for any payment of principal is extended by
operation of law or this Section or otherwise, interest thereon shall be
payable for such extended time at the rate in effect on the initial date for
payment. All payments hereunder shall be made without any deduction
whatsoever (other than for any Tax subject to the provisions of Section
2.15), including, but not limited to, any deduction for any set-off,
recoupment or counterclaim.
(b) Unless the Administrative Agent shall have received notice from
the Company prior to the date on which any payment is due to the Banks
hereunder that the Company or the applicable Borrower, as the case may be,
will not make such payment in full, the Administrative Agent may assume that
the Company or such Borrower, as applicable, has made such payment in full to
the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such
due date an amount equal to the amount then due such Bank. If and to the
extent that the Company or such Borrower, as applicable shall not have so
made such payment, each Bank shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to
such Bank until the date such Bank repays such amount to the Administrative
Agent, at the Federal Funds Rate.
Section 2.13. Funding Losses. If any Borrower makes any payment of
--------------
principal with respect to any Fixed Rate Loan (pursuant to Section 2.11,
2.15, Article VI, Article VIII or otherwise) on any day other than the last
day of an Interest Period applicable thereto, or if any Borrower fails to
borrow any Fixed Rate Loan after a Notice of Borrowing has been given to the
Administrative Agent in accordance with Section 2.03 or 2.04, such Borrower
shall reimburse each Bank on demand for any resulting loss or expense
incurred by it, including (without limitation) any loss incurred in
obtaining, liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such payment; provided
--------
that such Bank
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shall have delivered to the Company (as the agent for such Borrower) a
certificate as to the amount of such loss or expense, which certificate shall
be conclusive in the absence of manifest error. Upon the request of the
Company (on behalf of any Borrower), a Bank claiming reimbursement for any
such loss or expense under this Section shall provide to the Company
additional information with respect to the determination of such loss or
expense. In determining any such lose or expense, such Bank may use any
reasonable averaging and attribution methods.
Section 2.14. Computation of Interest and Fees. Interest on
--------------------------------
Negotiated Rate Loans (unless the Company and the Bank making such Loan shall
specifically agree otherwise), interest based on the Prime Rate hereunder and
all facility fees hereunder shall be computed on the basis of a year of 365
days (or 366 days in a leap year) and paid for the actual number of days
elapsed (including the first day but excluding the last day). All other
interest and all utilization fees shall be computed on the basis of a year of
360 days and paid for the actual number of days elapsed (including the first
day but excluding the last day).
Section 2.15. Taxes. (a) All payments in respect of principal,
-----
interest, fees and other amounts due hereunder shall be made to each Bank
free and clear of, and without deduction for, any and all present and future
taxes, levies, imposts, deductions, charges, withholdings, and all
liabilities with respect thereto, excluding liabilities of such Bank to pay
directly income and franchise taxes of (i) the United States and the
jurisdiction under the laws of which such Bank is organized, (ii) the
jurisdiction of such Bank's Lending Office and (iii) any political
subdivision or taxing authority thereof or therein (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities
being hereinafter referred to as "Non-excluded Taxes"). If the Company or
------------------
any Borrower shall be required by this Agreement to deduct any Non-excluded
Taxes from or in respect of any sum payable hereunder to a Bank or the
Administrative Agent, the sum payable shall be increased so that, after
making all required deductions (including deductions applicable to additional
sums payable under this Section), such Bank or the Administrative Agent shall
receive an amount equal to the sum it would have received had no such
deductions been made.
(b) In addition, the Company and each Borrower will deduct and pay
Non-excluded Taxes and taxes of all jurisdictions with respect to any amounts
paid under this subsection (b). If any Non-excluded Taxes or any taxes
mentioned in this subsection (b) are paid by any Bank or the Administrative
Agent, the Company or the applicable Borrower, as the case may be, will, upon
demand of such Bank (with a copy of such demand to the Administrative Agent)
or the Administrative Agent and whether or not such Non-excluded Taxes or
taxes shall be correctly or legally asserted, indemnify such Bank or the
Administrative Agent (as the case may be) for such payments, together with
any interest, penalties and expenses in connection therewith; provided that
--------
no payment of such Non-excluded Taxes or other taxes shall be made by any
Bank or the Administrative Agent without prior notice to the Company.
(c) Each Bank acknowledges that on the date hereof there is no
applicable requirement that any withholding, deduction or payment be made in
respect of Non-excluded Taxes from payments of interest on the Loans, or
other amounts payable under this Agreement. In the event any such Bank shall
become aware that any withholding, deduction or payment is
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required with respect to such Non-excluded Taxes, such Bank shall notify the
Company as soon as reasonably practicable but in any event within 45 days of
the date it shall have become aware of such required withholding, deduction
or payment and provide the Company with reasonable detail concerning such
required withholding, deduction or payment. Each Bank agrees that, if
necessary in order to avoid such deduction from time to time, it will avail
itself, to the extent it may lawfully do so without incurring additional
expense, of any double tax conventions with the United States under which
such amounts would be receivable by such Bank without such deduction. In
addition, each Bank agrees that, if any Non-excluded Tax or tax in respect of
which the Company or a Borrower is or would be liable under this Section
shall be imposed or increased in respect of any Syndicated Loan (other than a
Base Rate Loan) by such Bank by virtue of any change in law or otherwise
subsequent to the making of such Loan, the applicable Borrower shall be
entitled to prepay such Loan, together with accrued interest thereon to the
date of payment, upon at least three Euro-Dollar Business Days' notice to
such Bank (with a copy of such notice to the Administrative Agent); in such
event, such Bank shall make a Base Rate Loan to such Borrower in an amount
equal to the amount of such prepayment on the date of such prepayment.
(d) Each Bank agrees that it will file with the appropriate
authorities in the United States such letters, notices and documents as may
reasonably be required to enable the Borrowers to pay interest hereunder
without deduction in respect of United States Federal withholding taxes.
(e) In the event that either the Company or a Borrower or the
Administrative Agent or a Bank pays any Non-excluded Tax or tax of the
character described in Section 2.15(b), such Person shall, promptly after the
making of such payment, notify the Person for the account of which such
payment was made hereunder and shall forward to such Person the receipt (or a
certified copy thereof) in respect of such payment promptly after receiving
it. In the event the Company or a Borrower pays, or reimburses the
Administrative Agent or any Bank for paying, any Non-excluded Tax or tax of
the character described in Section 2.15(b), and a refund of any such payment
(or portion thereof) is received by the Administrative Agent or any Bank,
such Person shall remit the refund to the Company for the account of the
applicable Borrower.
(f) Neither the Company nor any Borrower shall be required to make
any additional payment pursuant to this Section in respect of any
Non-excluded Taxes or other taxes which could be avoided by any Bank or the
Administrative Agent in the exercise of reasonable diligence (consistent with
legal and regulatory restrictions), including a change in the Euro-Dollar
Lending Office or Money Market Lending Office of such Bank or the
Administrative Agent if not otherwise disadvantageous to such Bank or the
Administrative Agent.
(g) Each Bank shall promptly notify the Company of any change in its
Euro-Dollar Lending Office or Money Market Lending Office. In the event any
Bank so changes its Lending Office, such Bank shall not be entitled to
receive any payment in respect of Non-excluded Taxes or other taxes under
this Section to the extent the amount of such payment on the date of such
change in its Lending Office exceeds the amount such Bank would have been
entitled to receive on such date under this Section had no such change in
Lending Office been
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made, unless such change in Lending Office was made at the request of the
Company.
Section 2.16. Pricing Periods. (a) Subject to subsection (b) of
---------------
this Section, "Level I Pricing Period" means any period during which Index
----------------------
Debt shall be rated BBB+ or better by S&P or Baa1 or better by Xxxxx'x, and
"Level II Pricing Period" means any period that is not a Level I Pricing
-----------------------
Period. "Pricing Period" means a Level I Pricing Period or a Level II
--------------
Pricing Period.
(b) For purposes of the foregoing definitions, if any rating for
Index Debt established by Xxxxx'x or S&P shall be changed (other than as a
result of a change in the rating system of Xxxxx'x or S&P), such change shall
be effective, for purposes of the preceding subsection (a), as of the date on
which it is first announced by the applicable rating agency. If the rating
system of Xxxxx'x or S&P shall change, (i) the Company and the Banks shall
negotiate in good faith to amend the reference to the affected rating in the
preceding subsection (a) to reflect such changed rating system and (ii) until
the effectiveness of such amendment, the applicable Pricing Period shall be
determined solely by reference to the unaffected rating (if any) of Index
Debt.
Section 2.17. Eligible Subsidiaries. The Company may from time to
---------------------
time cause any wholly-owned Consolidated Subsidiary to become an Eligible
Subsidiary eligible to borrow Loans hereunder by delivering to the
Administrative Agent an Election to Participate, substantially in the form of
Exhibit K hereto, with respect to such Subsidiary. The eligibility of any
such Subsidiary as an Eligible Subsidiary shall terminate when the
Administrative Agent receives a Notice of Termination, substantially in the
form of Exhibit L hereto, with respect to such Subsidiary. Each Election to
Participate delivered to the Administrative Agent shall be duly executed on
behalf of the relevant Subsidiary and the Company, and each Election to
Terminate delivered to the Administrative Agent shall be duly executed on
behalf of the Company, in such number of copies as the Administrative Agent
may request. The delivery of an Election to Terminate shall not affect any
obligation of the relevant Subsidiary theretofore incurred but on and after
the effective date of such Election to Terminate such Subsidiary shall have
no liability hereunder other than with respect to Loans made to such
Subsidiary prior to such date. The Administrative Agent shall promptly give
notice to the Banks of its receipt of any Election to Participate or Election
to Terminate.
ARTICLE III
CONDITIONS TO BORROWINGS
The effectiveness of this Agreement and the obligation of each Bank
to make a Loan on the occasion of each Borrowing pursuant to Article II is
subject to the satisfaction of the following conditions, an applicable:
Section 3.01. (a) Syndicated Borrowings. In the case of each
---------------------
Syndicated Borrowing hereunder:
(i) receipt by the Administrative Agent of a Notice of Borrowing
as required by
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Section 2.03;
(ii) the fact that, immediately prior to such Borrowing, no Default
(or, in the case of a Refunding Borrowing, no Default which has resulted
in the Loans being declared due and payable) shall have occurred and be
continuing;
(iii) the fact that, immediately after such Borrowing and after
giving effect to the amount of such Borrowing and the use of the proceeds
thereof, no Default resulting from such Borrowing or such use of proceeds
would occur and the aggregate outstanding principal amount of the Loans
will not exceed the Total Commitment; and
(iv) the fact that the representations and warranties contained in
this Agreement (except the representations and warranties contained in
Sections 4.01(d)(iii), 4.01(e), 4.01(f), 4.01(g) and 4.01(l)) shall be
true on and as of the date of such Borrowing with the same force and
effect as if made on and as of such date, except to the extent that any
such representation or warranty in Section 4.01(d)(i) or (ii) or Section
4.01(k) is made in respect of a specified date or a specified period of
time in which case such representation or warranty shall continue to be
true in respect of the specified date or the specified period of time.
(b) Money Market Borrowings. In the case of each Money Market
-----------------------
Borrowing hereunder:
(i) receipt by the Administrative Agent of a Notice of Borrowing
as required by Section 2.04;
(ii) the fact that, immediately prior to such Borrowing, no Default
shall have occurred and be continuing;
(iii) the fact that, immediately after such Borrowing and after
giving effect to the amount of such Borrowing and the use of proceeds
thereof, no Default would occur and be continuing and the aggregate
outstanding principal amount of the Loans would not exceed the Total
Commitment; and
(iv) the fact that the representations and warranties contained
in this Agreement (except the representations and warranties contained
in Sections 4.01(d)(iii), 4.01(e), 4.01(f), 4.01(g) and 4.01(l)) shall
be true on and as of the date of such Borrowing with the same force and
effect as if made on and as of such date, except to the extent that any
such representation or warranty in Section 4.01(d)(i) or (ii) or Section
4.01(k) is made in respect of a specified date or a specified period of
time in which case such representation or warranty shall continue to be
true in respect of the specified date or the specified period of time.
Each Borrowing hereunder shall be deemed to be a representation and warranty
by the Company on the date of such Borrowing as to the facts specified in
clauses (ii), (iii) and (iv) of subsection (a) or (b), as applicable, of this
Section.
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Section 3.02. Effectiveness. In the case of the effectiveness of
-------------
this Agreement:
(a) receipt by the Administrative Agent of an opinion of Xxxxxx
Xxxxxx, Esq., Associate General Counsel of the Company, substantially in the
form of Exhibit F hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks shall have reasonably
requested;
(b) receipt by the Administrative Agent of an opinion of Milbank,
Tweed, Xxxxxx & XxXxxx LLP, special New York counsel to Chase, substantially
in the form of Exhibit G hereto and covering such additional matters relating
to the transactions contemplated hereby as the Required Banks shall have
reasonably requested;
(c) receipt by the Administrative Agent of a certificate, signed
by any two of the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller and a Vice President of the Company, to the effect that
no Default has occurred and is continuing (or would result from any Loans
being made on the Effective Date) and that the representations and warranties
contained in this Agreement are true on and as of the Effective Date with the
same effect as though made on the Effective Date;
(d) receipt by the Administrative Agent of all documents it may
reasonably request relating to the existence and good corporate standing of
the Company and ABI, the corporate authority for, the due authorization and
execution of and the validity of this Agreement and the Guaranty Fee
Agreement, and any other matters relevant hereto, all in form and substance
satisfactory to the Administrative Agent;
(e) receipt by the Administrative Agent of a fully executed copy of
the Guaranty Fee Agreement in the form of Exhibit J hereto;
(f) the Company shall have terminated all lending commitments under,
and shall have paid in full any outstanding loans (together with accrued
interest thereon), accrued fees and other amounts payable under, the Credit
Agreement dated as of December 15, 1994, among the Company, ABI, the banks
party thereto and the agent named therein, as such Credit Agreement has been
amended, supplemented or otherwise is in effect immediately prior to the
effectiveness of this Agreement;
(g) receipt by the Administrative Agent, for its account and the
account of the Banks or the Lead Arranger specified on the cover page of
this Agreement, as the case may be, of all fees required to be paid, and
all expenses required to be paid or reimbursed for which invoices have been
presented (including the reasonable fees and expenses of legal counsel), on
or before the Effective Date; and
(h) receipt by the Administrative Agent of all such other documents
and opinions as the Required Banks or the Administrative Agent shall request,
in each case, in form and substance satisfactory to the Required Banks or the
Administrative Agent, as the case may be.
The opinions referred to in subsections (a) and (b) of this Section and the
certificate referred to in
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subsection (c) of this Section shall be dated the Effective Date. The
Administrative Agent shall promptly notify the Company and the Banks of
the Effective Date, and such notice shall be conclusive and binding on all
parties hereto.
Section 3.03. Negotiated Rate Borrowings. Each Borrowing of a
--------------------------
Negotiated Rate Loan shall be subject to such conditions as the Company (on
behalf of the applicable Borrower) and the Bank making such Negotiated Rate
Loan may agree and, unless the Company and such Bank shall specifically agree
otherwise, to the conditions set forth in clauses (ii), (iii) and (iv) of
Section 3.01(b).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Company and ABI.
-----------------------------------------------------
The Company and (so long as the ABI Guarantee shall be in effect) ABI jointly
and severally represent and warrant to the Banks and the Administrative Agent
that:
(a) Corporate Existence and Power. The Company and ABI are
-----------------------------
corporations duly incorporated, validly existing and in good standing under
the laws of the State of Delaware and the State of Missouri, respectively,
and each has all corporate powers and authority and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
(b) Corporate and Governmental Authorization; Contravention. The
-------------------------------------------------------
execution, delivery and performance by the Company of this Agreement and the
Guaranty Fee Agreement, and by ABI of this Agreement and the Guaranty Fee
Agreement, are within the corporate powers of each of the Company and ABI,
have been duly authorized by all necessary corporate action on the part of
the Company and ABI, require no action by or in respect of, or filing with,
any governmental body, agency or official, do not contravene, or constitute a
default under, any provision of any applicable law or regulation or of the
Certificate of Incorporation or By-Laws of the Company or the Articles of
Incorporation or By-Laws of ABI or of any agreement, judgment, injunction,
order, decree or other instrument binding on the Company or ABI, and will not
result in the creation or imposition of any Lien on any asset of the Company
or any of its Subsidiaries.
(c) Binding Effect. Each of this Agreement and the Guaranty Fee
--------------
Agreement constitutes a valid and binding agreement of each of the Company
and ABI, enforceable in accordance with their respective terms.
(d) Financial Information. (i) The consolidated balance sheet of
---------------------
the Company and its Consolidated Subsidiaries as of December 31, 1999,
and the related consolidated statements of income, changes in
shareholders equity and cash flows for the fiscal year then ended,
reported on by PricewaterhouseCoopers LLP and set forth in the Company's
1999 Form 10-K, a copy of which has been delivered to each of the Banks,
fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Company and its
Consolidated Subsidiaries as of such date and their
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consolidated results of operations and cash flows for such fiscal year.
(ii) The unaudited consolidated balance sheet of the Company and
its Consolidated Subsidiaries as of March 31, 2000, and the related
unaudited consolidated statements of income and cash flows for the three
months then ended, set forth in the Company's quarterly report for the
fiscal quarter ended March 31, 2000, as filed with Securities and
Exchange Commission on Form 10-Q, a copy of which has been delivered to
each of the Banks, fairly present, in conformity with generally accepted
accounting principles applied on a basis consistent with the financial
statements referred to in the preceding clause (i) of this subsection
(d), the consolidated financial position of the Company and its
Consolidated Subsidiaries as of such date and the consolidated results
of operations and cash flows for such three-month period (subject to
normal year-end adjustments).
(iii) Since March 31, 2000, there has been no material adverse
change in the business, financial position or results of operations of
the Company and its Consolidated Subsidiaries, considered as a whole, on
a cumulative basis.
(e) Litigation. There is no action, suit, arbitration or other
----------
proceeding pending against, or to the knowledge of the Company or ABI
threatened against or affecting, the Company or any of its Subsidiaries
before any court or arbitrator or any governmental body, agency or official
in which there is a reasonable possibility of an adverse decision and which
would, if adversely determined, materially and adversely affect the ability
of the Company or ABI to perform its obligations hereunder.
(f) ERISA. As of the date of this Agreement, (i) each member of the
-----
ERISA Group has fulfilled its obligations under the minimum funding standards
of ERISA and the Code with respect to each Plan and is in compliance with the
currently applicable provisions of ERISA and the Code with respect to each
Plan and (ii) no member of the ERISA Group has (A) sought a waiver of the
minimum funding standard under Section 412 of the Code in respect of any
Plan, (B) is in default respecting any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or has made any
amendment to any Plan or Benefit Arrangement, which has resulted or could
reasonably be expected to result in the imposition of a Lien or the posting
of a bond or other security under ERISA or the Code; or (C) has any
outstanding liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA, other than any failure to
fulfill such obligations or comply with such provisions (in the case of
clause (i) of this subsection (f)) or any waiver, default or liability (in
the case of clause (ii) of this subsection (f)) that, when taken together
with such other failures, waivers, defaults or liabilities for which
liability is reasonably expected to occur, could reasonably be expected to
result in a material adverse effect on the business, operations or financial
condition of the Company and its Subsidiaries taken as a whole.
(g) Tax Returns and Payment. The Company and its Domestic
-----------------------
Subsidiaries have filed all income tax returns and all other material tax
returns which are required to be filed and have paid all taxes due pursuant
to such returns or pursuant to any assessment received by the
35
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Company or any of its Subsidiaries, except for the filing of such returns, if
any, in respect of which an extension of time for filing is in effect, except
for such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with generally accepted
accounting principles and except to the extent that such failure to file or
pay does not materially and adversely affect the ability of the Company or
ABI to perform its obligations hereunder. The charges, accruals and reserves
on the books of the Company and each of its Subsidiaries in respect of any
taxes or other governmental charges are, in the opinion of the Company,
adequate.
(h) Ownership of ABI Shares. The Company owns, and will continue
-----------------------
to own, directly or indirectly, all of the outstanding shares of the capital
stock of ABI, free and clear of all Liens, claims and rights of other
Persons.
(i) Not an Investment Company. Neither the Company nor ABI is, nor,
-------------------------
after the use of the proceeds of any Borrowing, will it be, an "investment
company" or a company "controlled" by an "investment company organized or
otherwise created under the laws of the United States or of a State" within
the meaning of the Investment Company Act of 1940, as amended.
(j) Regulations U and X. The execution, delivery and performance
-------------------
of this Agreement in accordance with its terms and the making or borrowing of
the Loans will not violate the provisions of Regulation U or X of the Board
of Governors of the Federal Reserve System. If requested by any Bank, the
Company will furnish to such Bank in connection with any Loan hereunder a
statement in conformity with the requirements of Federal Reserve Form FR U-1
or FR G-3 referred to in said Regulation U.
(k) Unrestricted Subsidiaries. The Subsidiaries listed on Schedule
-------------------------
4.01(k) hereto constitute all of the Unrestricted Subsidiaries as of the date
hereof, except for Subsidiaries the assets and earnings of which, in the
aggregate, do not constitute a material portion of the assets and net
earnings of the Company and its Consolidated Subsidiaries.
(l) Environmental Matters. In the ordinary course of its business,
---------------------
the Company conducts an ongoing review of the effect of Environmental Laws on
the business, operations and properties of the Company and its Domestic
Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or
operating expenditures required for clean-up or closure of properties
presently or previously owned, any capital or operating expenditures required
to achieve or maintain compliance with environmental protection standards
imposed by law or as a condition of any license, permit or contract, any
related constraints on operating activities, including any periodic or
permanent shutdown of any facility or reduction in the level of or change in
the nature of operations conducted thereat and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses). On the basis of this review, the Company has reasonably concluded
that Environmental Laws are unlikely to have a material adverse effect on the
ability of the Company or ABI to perform its obligations hereunder.
Section 4.02. Representations and Warranties of the Eligible
----------------------------------------------
Subsidiaries. The
------------
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Company and each Eligible Subsidiary shall, by signing and delivering an
Election to Participate, be deemed to represent and warrant to the Banks and
the Administrative Agent that, as of the date of such Election
to Participate:
(a) Corporate Existence and Power. Such Eligible Subsidiary is a
-----------------------------
corporation duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation and is, and upon each Borrowing
by it hereunder will be, a wholly-owned Consolidated Subsidiary of the
Company.
(b) Corporate and Governmental Authorization; Contravention.
-------------------------------------------------------
The execution and delivery by such Eligible Subsidiary of its Election to
Participate, and the performance by it of this Agreement, are within its
corporate powers, have been duly authorized by all necessary corporate
action, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene, or constitute
a default under, any provision of any applicable law or regulation or of
its Certificate of Incorporation or By-Laws (or comparable organizational
documents) or of any agreement, judgment, injunction, order, decree or other
instrument binding on the Company, ABI or such Eligible Subsidiary, and will
not result in the creation or imposition of any Lien on any asset of the
Company, ABI or any of their respective Subsidiaries. The guarantees by the
Company of the obligations of such Eligible Subsidiary have been duly
authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official and
do not contravene, or constitute a default under, any provision of any
applicable law or regulation or of its Certificate of Incorporation or
By-Laws (or comparable organizational documents) or of any agreement,
judgment, injunction, order, decree or other instrument binding on the
Company, ABI or such Eligible Subsidiary, and will not result in the creation
or imposition of any Lien on any asset of the Company, ABI or any of their
respective Subsidiaries.
(c) Binding Effect. This Agreement constitutes a valid and binding
--------------
agreement of such Eligible Subsidiary, enforceable in accordance with its
terms.
(d) Not an Investment Company. Such Eligible Subsidiary is not,
-------------------------
nor, after the use of the proceeds of any Borrowing, will it be, an
"investment company" or a company "controlled" by an "investment company
organized or otherwise created under the laws of the United States or of a
State" within the meaning of the Investment Company Act of 1940, as amended.
(e) Regulations U and X. The execution and delivery by such
-------------------
Eligible Subsidiary of its Election to Participate, the performance by it of
this Agreement in accordance with its terms and the making or borrowing of
its Loans will not violate the provisions of Regulation U or X of the Board
of Governors of the Federal Reserve System. If requested by any Bank, such
Eligible Subsidiary will furnish to such Bank in connection with any Loan
hereunder a statement in conformity with the requirements of Federal Reserve
Form FR U-1 or FR G-3 referred to in said Regulation U.
ARTICLE V
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COVENANTS
Section 5.01. Covenants of the Company. The Company agrees that,
------------------------
so long as any Bank has any Commitment hereunder or any Loan or any other
amount owing hereunder remains unpaid:
(a) Information. The Company will deliver to each of the Banks:
-----------
(i) as soon as available and in any event within 120 days after
the end of each fiscal year of the Company, the consolidated balance
sheet of the Company and its Consolidated Subsidiaries as of the end
of such fiscal year and the related consolidated statements of income,
changes in shareholders equity and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by PricewaterhouseCoopers LLP or
other independent public accountants of nationally recognized standing
and in compliance with the applicable rules and regulations of the
Securities and Exchange commission;
(ii) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the
Company, the consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter and the related
consolidated statements of income and cash flows for such quarter and for
the portion of the Company's fiscal year ended at the end of such
quarter, setting forth in each case in comparative form the figures for
the corresponding quarter and the corresponding portion of the Company's
previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, preparation in accordance
with generally accepted accounting principles and consistency by a
financial officer or the chief accounting officer of the Company;
(iii) not later than the date on which the delivery of each set
of financial statements referred to in clauses (i) and (ii) of this
subsection (a) is required, a certificate of a financial officer or the
chief accounting officer of the Company (A) stating whether there exists
on the date of such certificate any Default and, if any Default then
exists, setting forth the details thereof and the action which the
Company is taking or proposes to take with respect thereto, and (B) if
applicable, setting forth a calculation in the form of Exhibit H hereto
as to compliance with Section 5.01(I);
(iv) forthwith upon the occurrence of any Default, a certificate
of an officer of the Company setting forth the details thereof and the
action which the Company or (so long as the ABI Guarantee shall be in
effect) ABI is taking or proposes to take with respect thereto;
(v) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed; and
(vi) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent or
38
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for an offering of debt or equity securities the proceeds of which will
not exceed $5,000,000) and of all annual, quarterly, monthly or special
reports which the Company shall file with the Securities and Exchange
Commission;
provided that the Company shall be deemed to have delivered the information
--------
specified in clauses (i), (ii), (v) and (vi) of this subsection (a) on the
date such information is posted at the Company's website on the Internet at
"xxx.xxxxxxxx-xxxxx.xxx", at "xxx.xxx.xxx" or at such other website
identified by the Company in a notice to the Administrative Agent and the
Banks that is accessible by the Banks without charge; provided further that
----------------
the Company shall deliver paper copies of such information to any Bank upon
request of such Bank through the Administrative Agent.
(b) Limitations on Liens. The Company will not create, assume,
--------------------
incur, guarantee or suffer to exist, and will not cause, suffer or permit any
Restricted Subsidiary to create, assume, incur, guarantee or suffer to exist,
any Debt secured by any Lien on any of its Principal Plants or on the stock
or other securities of any Restricted Subsidiary, other than:
(i) any such Liens existing on the date hereof and listed on
Schedule 5.01(b) hereto; provided that such Liens shall secure only
--------
those obligations which they secure on the date hereof or extensions,
renewals or replacements thereof referred to in clause (vii) of this
subsection (b);
(ii) purchase money Liens on assets acquired after the date hereof,
or Liens on assets acquired after the date hereof which secure Debt, the
proceeds of which are used to reimburse the Company or any Restricted
Subsidiary for the cost of the acquisition or construction of such
assets;
(iii) Liens on any asset acquired by the Company or any Subsidiary
(other than from the Company or any Subsidiary) after the date hereof
existing at the time of acquisition of such asset;
(iv) Liens on an asset to secure all or any part of the cost of
development or construction of such asset or improvements thereon and
which shall be released or satisfied within 120 days after completion
of such development or construction;
(v) Liens on an asset created in connection with the acquisition,
construction or development of additions, extensions or improvements to
such asset which shall be financed by obligations described in Sections
142, 144(a) or 144(c) of the Code, as amended, or by obligations entitled
to substantially similar tax benefits under other legislation or
regulations in effect from time to time;
(vi) Liens securing indebtedness owing to the Company or any of its
Restricted Subsidiaries by a Restricted Subsidiary of the Company;
(vii) extensions, renewals or replacements of Liens referred to in
clauses (i) to (vi), inclusive, or (x) of this subsection (b), that, in
the case of a Lien referred to in clause
39
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(iv), (v), (vi) or (x), shall continue to satisfy all of the requirements
of the applicable clause; provided that the Debt secured by such
--------
extension, renewal or replacement Lien is not increased and that such Lien
does not attach to any other assets;
(viii) as permitted under Section 5.01(f);
(ix) Liens incurred in connection with sale and leaseback
transactions permitted under Section 5.01(g); and
(x) Liens on an asset required in connection with any program, law,
statute or regulation of any state or local authority which provides
financial or tax benefits not available without such Lien, provided that
--------
substantially all of the obligations secured by such Lien are obligations
that are in lieu of, or reduce, a property tax or other payment
obligation that itself would have been secured by a Lien permitted
hereunder.
(c) Consolidation, Merger or disposition of Assets. The Company
----------------------------------------------
will not (i) consolidate or merge with or into any other Person or (ii) sell,
lease or otherwise transfer (or permit any of its Restricted Subsidiaries to
engage in any such transaction), directly or indirectly (in a single
transaction or a series of related transactions), assets constituting all or
substantially all the assets of the Company and its Restricted Subsidiaries,
taken as a whole, to any other Person other than to the Company or (unless
the ABI Guarantee shall be in effect) any Restricted Subsidiary that is a
wholly-owned Subsidiary of the Company; provided that nothing in this
--------
Agreement shall prohibit (A) the Packaging Business Divestiture or (B) any
consolidation or merger transaction in which the Company is a party so long
as (i) the Company is the surviving entity and (ii) no Default shall have
occurred and be continuing at the time of or after giving effect to any such
consolidation or merger transaction.
(d) Change in Nature of Business. The Company will not change, or
----------------------------
permit to be changed, the nature of the business conducted by it and its
Subsidiaries as a whole.
(e) Disposition of Assets. The Company will not, and will not
---------------------
permit any of its Restricted Subsidiaries to, dispose of (in a single
transaction or a series of related transactions) any Principal Plants or any
stock of any Restricted Subsidiaries if the net book value of such Principal
Plants and/or the assets of such Restricted Subsidiaries (or, in the case of
the disposition of only a part of the stock of any Restricted Subsidiary,
that percentage of the assets of each such Restricted Subsidiary which is
equal to the percentage of the stock of such Restricted Subsidiary that has
been or is to be disposed of) exceeds, in the aggregate, 10% of Net Tangible
Assets, as reflected on the balance sheet most recently delivered prior to
such transaction (or series of related transactions) by the Company to the
Banks pursuant to Section 5.01(a); provided, however, that the foregoing
-------- -------
shall not prohibit (A) the Packaging Business Divestiture or (B) such
transaction (or transactions) (x) if the disposition is made solely to a
Restricted Subsidiary that is a wholly-owned Subsidiary of the Company or (y)
if an amount equal to the proceeds therefrom in excess of such 10% of Net
Tangible Assets shall be applied, not later than 120 days (or, if the Company
holds such excess proceeds in cash or cash equivalents, two years) after such
transaction (or after the transaction in such series which causes such amount
to be exceeded), either to the repayment or prepayment of Funded Debt of the
40
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Company or to pay (or to repay or prepay Debt incurred in order to pay) the
cost of expanding, constructing or acquiring any Principal Plants; provided
--------
further, however, that (so long as the ABI Guarantee shall be in effect) (i)
------- -------
in the case of a disposition of a Principal Plant of ABI, if an amount is to
be applied to pay (or to repay or prepay Debt incurred in order to pay) the
cost of expanding, constructing or acquiring a Principal Plant in order to
comply with the foregoing, such Principal Plant must be owned by ABI, and
(ii) the Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, (A) dispose of any Principal Plant of ABI to any
other Subsidiary or (B) dispose of any stock of ABI (or any stock of any
Subsidiary that directly or indirectly owns any stock of ABI) to any
Subsidiary other than a Restricted Subsidiary that is wholly-owned, directly
or indirectly, by the Company.
(f) Additional Permitted Secured Indebtedness. Notwithstanding the
-----------------------------------------
provisions of Sections 5.01(b) and (g), the Company and any one or more
Restricted Subsidiaries may (i) create, assume, guarantee or suffer to exist
any Debt secured by a Lien which would otherwise be subject to the
restrictions of Section 5.01(b), and (ii) transfer any Principal Plant in a
sale-leaseback transaction which would otherwise be subject to the
restrictions of Section 5.01(g), if, after giving effect to the incurrence of
such Debt or the transfer of such Principal Plant, the aggregate principal
amount of all such Debt outstanding at such time, when added to the fair
market value of all such Principal Plants transferred after the date hereof
and not reacquired at such time (computed without duplication of amounts
constituting Debt referred to in clause (i) of this subsection (f)), would
not at the time exceed 10% of Net Tangible Assets (determined before giving
effect to the incurrence of such Debt or the transfer of such Principal
Plant).
(g) Sale and Leaseback. Except (x) as permitted under Section
------------------
5.01(f), (y) for any transaction involving a lease for a temporary period not
to exceed three years, by the end of which it is intended that the use of the
leased Principal Plant by the Company or any Subsidiary will be discontinued
and (z) for any transaction with a state or local authority that is required
in connection with any program, law statute or regulation that provides
financial or tax benefits not available without such transaction, neither the
Company nor any Restricted Subsidiary shall sell any Principal Plant as an
entirety, or any substantial portion thereof, with the intention of the
Company or any Subsidiary taking back a lease of such Principal Plant or
portion, unless:
(i) the fair market value of the net proceeds of such sale are
at least equal to the fair market value (as determined by an officer
of the Company) of such Principal Plant or portion; and
(ii) the Company shall within 120 days (or, if the Company holds
the net proceeds described below in cash or cash equivalents, two years)
after the transfer of title to such Principal Plant or portion, (A)
prepay Funded Debt of the Company in amount equal to such net proceeds,
(B) expend an amount equal to such net proceeds for the expansion,
construction or acquisition of a facility which will then constitute a
Principal Plant or (C) effect a combination of the transactions referred
to in clauses (A) and (B) above in an amount equal to such net proceeds;
provided that (so long as the ABI Guarantee shall be in effect), in the
--------
case of a sale of a Principal Plant (or portion thereof) of ABI, if an
amount is to be expended for the expansion, construction or acquisition
of a
41
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Principal Plant in order to comply with the foregoing, such Principal
Plant must be owned by ABI.
(h) Ownership of Shares of ABI. The Company will at all times
--------------------------
continue to own, directly or indirectly, 100% of the outstanding Voting Stock
of ABI.
(i) Consolidated Net Worth. Consolidated Net Worth will not be
----------------------
less than $1,500,000,000 on any date; provided that compliance with this
--------
subsection (i) shall not be required on any date that Index Debt shall be
rated BBB- or higher by S&P and Baa3 or higher by Xxxxx'x. For purposes of
the foregoing, if any rating established by Xxxxx'x or S&P shall be changed,
such change shall be effective as of the date on which it is first announced
by the applicable rating agency.
(j) Consultation. Solely for the purpose of permitting the Banks
------------
to determine compliance by the Company and (so long as the ABI Guarantee
shall be in effect) ABI with this Agreement, the Company will permit, and
will cause its Restricted and Eligible Subsidiaries to permit, any Bank (and
any person appointed by any Bank to whom the Company does not reasonably
object) to discuss the affairs, finances and accounts of the Company and its
Restricted and Eligible Subsidiaries with the officers of the Company or any
of its Subsidiaries, all at such reasonable times and as often as may
reasonably be requested.
(k) Payment of Taxes; Corporate Existence; Maintenance of
-----------------------------------------------------
Properties; Insurance. The Company will, and will cause each Restricted
---------------------
Subsidiary to,
(i) pay and discharge promptly all taxes, assessments and other
governmental charges imposed upon it (whether directly or through the
ownership of Subsidiaries) or any of its property; provided, however,
-------- -------
that the Company and each Restricted Subsidiary of the Company shall not
be required to pay any such tax, assessment or other governmental charge
the payment of which is being contested in good faith and by appropriate
proceedings and as to which adequate reserves have been provided in
accordance with generally accepted accounting principles, except that
the Company will pay or cause to be paid all such taxes, assessments and
governmental charges forthwith upon the commencement of proceedings to
foreclose any Lien which has attached as security therefor, unless such
foreclosure is stayed by the filing of an appropriate bond;
(ii) do all things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises; provided, however,
-------- -------
that nothing in this subsection (ii) shall prevent any consolidation,
merger or other transaction among any of the Company's Subsidiaries or
any abandonment or termination of the corporate existence of any
Restricted Subsidiary (other than (so long as the ABI Guarantee shall
in effect) ABI) or any abandonment or termination of any rights or
be franchises of any Restricted Subsidiary or any abandonment or
termination of any rights or franchises of the Company so long as such
abandonment or termination does not change the overall nature of the
business conducted by the Company and its Subsidiaries and so long as it
is not disadvantageous in any material respect to the Banks and is, in
the opinion of the Company, in the best interests of the Company;
42
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(iii) maintain and keep its properties as a whole in good repair,
working order and condition; provided, however, that nothing in this
-------- -------
subsection (iii) shall prevent any abandonment of any of its properties
that is not disadvantageous in any material respect to the Banks and
that is, in the opinion of the Company, in the best interests of the
Company; and
(iv) insure or self-insure its assets and business in such manner
and to such extent as is customary with business enterprises of
comparable size and subject to comparable hazards.
(l) Pari Passu Obligations. Except for secured Debt permitted
----------------------
under Section 5.01(b) or 5.01(f), the Company shall cause the obligations of
the Company and (so long as the ABI Guarantee shall be in effect) ABI in
respect of the Loans at all times to rank not less than pari passu with all
other senior indebtedness of the Company and ABI, respectively.
(m) ERISA. As soon as possible and in any event within 30 days
-----
after the Company or any member of the ERISA Group:
(i) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to administer
any Plan;
(ii) applies for a waiver of the minimum funding standard under
Section 412 of the Code;
(iii) gives notice of intent to terminate any Plan under Section
4041(c) of ERISA; or
(iv) receives notice from a Multiemployer Plan of intent to impose
liability under Title IV of ERISA;
and such events in the aggregate could subject, or have subjected, the
Company and all members of the ERISA Group to any Taxes, Debts, penalties or
liabilities in excess of $80,000,000 at any one time (it being understood
that any such Taxes, Debts, penalties or liabilities that have been satisfied
or paid by the Company shall not be included in determining the foregoing
amount), the Company will deliver, or cause to be delivered, to the
Administrative Agent a certificate of an Executive Officer setting forth the
details of such of the events described in (i) through (iv) as are applicable
and the action which the Company and all relevant members of the ERISA Group
propose to take or have taken with respect thereto, together with copies of
all notices or filings received from the PBGC, the Internal Revenue Service
or any other agency of the United States government or required by the PBGC,
the Internal Revenue Service or any other agency of the United States
government with respect such of the events described in (i) through (iv) as
are applicable.
(n) Payment of Guaranty Fee. So long as the ABI Guarantee shall be
-----------------------
in effect, the Company will pay to ABI the guaranty fee required pursuant to
the Guaranty Fee Agreement
43
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and will take all such other action as may be necessary to maintain the
Guaranty Fee Agreement in full force and effect at all times.
(o) Compliance with Laws. The Company will comply, and cause each
--------------------
of its Subsidiaries to comply, in all material respects with all
Environmental Laws and ERISA and the rules and regulations thereunder except
where the necessity of compliance therewith is contested in good faith by
appropriate proceedings, and except where failure to so comply would not
materially and adversely affect the ability of the Company or (so long as the
ABI Guarantee shall be in effect) ABI to perform its obligations hereunder.
(p) Ratings. The Company will use commercially reasonable efforts
-------
to obtain and maintain ratings of Index Debt at all times from Xxxxx'x and
S&P (unless, in either case, such rating agency shall cease to rate corporate
debt obligations) and will promptly notify the Banks upon obtaining knowledge
of any change in, or cessation of, such ratings.
Section 5.02. Use of Proceeds. The Company and each Borrower agree
---------------
that the proceeds of Loans made under this Agreement will be used for the
general corporate purposes of the applicable Borrower and that none of such
proceeds will be used in violation of any applicable law or regulation.
Section 5.03. Covenant of ABI. ABI agrees that, so long as any
---------------
Bank has any Commitment hereunder or any Loan or any other amount owing
hereunder remains unpaid, (a) subject to Section 9.07, ABI will maintain the
Guaranty Fee Agreement in full force and effect, and (b) in the event that
the Company shall at any time fail to pay the guaranty fee due to ABI
pursuant to the Guaranty Fee Agreement, the Administrative Agent or any Bank
or Banks shall have the right, but shall not be obligated, to pay such fee
to ABI.
ARTICLE VI
DEFAULTS
Section 6.01. Events of Default. If one or more of the following
-----------------
events (each an "Event of Default") shall occur and be continuing, such event
----------------
shall constitute an Event of Default under this Agreement, whatever the
reason for such event and whether it shall occur by operation of law or
pursuant to any order, rule or regulation of any court or government
authority or otherwise:
(a) any Borrower shall fail to pay, within two days after the due
date thereof, any principal of any of its Loans, or the Company, any
Borrower or (so long as the ABI Guarantee shall be in effect) ABI shall
fail to pay, within five days after the due date thereof, any interest
on any of its Loans or other amount payable by it under this Agreement;
(b) the Company shall violate or fail to perform any of its
covenants or agreements contained in Section 5.01(b), (c), (d), (e),
(g), (h) or (i) or the last sentence of Section 9.07 or (so long as the
ABI Guarantee shall be in effect) ABI shall violate or fail
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to perform any of its covenants or agreements contained in Section 5.03;
(c) the Company, any Eligible Subsidiary or (so long as the ABI
Guarantee shall be in effect) ABI shall fail to perform any term,
covenant or agreement herein contained (other than those referred to in
clause (a) or (b) of this Section) for 30 days after written notice of
such failure is given to the Company by the Administrative Agent at the
request of any Bank;
(d) the Company, ABI or any Eligible Subsidiary shall have made any
representation, warranty or statement in or pursuant to this Agreement,
or in any certificate or other document delivered by or on behalf of the
Company pursuant hereto, which shall prove to have been false in any
material respect when made;
(e) the Company or any Restricted Subsidiary shall fail (and such
failure shall not have been cured or waived) to perform or observe any
provision, term or condition of, or any default shall occur under, any
agreement or instrument relating to any of its Indebtedness (other than
the Indebtedness hereunder), the principal amount of which equals or
exceeds $100,000,000 in the aggregate (or its equivalent in another
currency) which results in the acceleration of maturity of such
Indebtedness;
(f) the Company or any Restricted Subsidiary shall have entered
against it by a court having jurisdiction in the premises a decree or
order for relief in respect of it in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of it or for all or any
substantial part of its property, or ordering the winding-up or
liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days;
(g) the Company or any Restricted Subsidiary shall commence a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent
to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or similar official) for
it or for all or any substantial part of its property, or make any
general assignment for the benefit of any of the foregoing or for the
benefit of its creditors;
(h) any one or more of the events or conditions referred to in
clauses (i) through (iii) of this subsection (h) shall occur:
(i) failure of any member of the ERISA Group sponsoring a
Material Plan to pay within 30 days after it becomes due an amount
or amounts aggregating in excess of $100,000,000 (other than for
premiums under Section 4007 of ERISA) which it shall have become
liable to pay under Section 412 of the Code or Section 302 or
Title IV of ERISA with respect to such Material Plan;
(ii) termination, imposition of liability (other than for
premiums under
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Section 4007 of ERISA), or appointment of a trustee by the PBGC
under Title IV of ERISA in respect of any Plan, where the amount
of unfunded benefit liabilities within the meaning of Section
4001(a)(18) of ERISA in respect of such Plan and any other Plans
similarly affected could reasonably be expected to exceed
$100,000,000 in the aggregate; or
(iii) a complete or partial withdrawal from, or a default
within the meaning of Section 4219(c)(5) of ERISA with respect to
one or more Multiemployer Plans which could reasonably be expected
to cause one or more members of the ERISA Group to incur in the
aggregate any Taxes, Debts, penalties or liabilities in excess of
$100,000,000 and such Taxes, Debts, penalties or liabilities remain
unsatisfied for a period of 30 days;
(i) a judgment or order for the payment of money in excess of
$100,000,000 shall be rendered against the Company or any Restricted
Subsidiary and such judgments or order shall continue unsatisfied and
unstayed for a period of 30 days;
(j) any Person, either alone or together with others acting in
concert with such Person, shall own 50% or more of the outstanding shares
of Voting Stock of the Company, or the Continuing Directors shall not
constitute a majority of the Board of Directors; or
(k) except as provided in Section 9.07, the Guaranty Fee Agreement,
the ABI Guarantee or any guarantee by the Company pursuant to Article IX
shall cease to be, or shall be asserted by ABI or the Company not to be,
in full force and effect.
Section 6.02. Remedies Upon Default. Upon the occurrence and
---------------------
continuation of an Event of Default set forth in Section 6.01, (a) the
Administrative Agent shall, if requested in writing by Banks having more than
51% or more of the Total Commitment, by notice in writing to the Company (on
behalf of the Borrowers) terminate the Total Commitment, and the Total
Commitment shall thereupon terminate, and (b) the Administrative Agent shall,
if requested in writing by the holders of more than 51% or more in aggregate
principal amount of the Loans then outstanding, by notice in writing to the
Company declare the principal of and interest on the Loans and all other
amounts payable hereunder (together with accrued interest thereon) to be, and
they shall thereupon forthwith be and become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived; provided, however, that in the case of the
-------- -------
occurrence of any Event of Default described in Section 6.01(f) or (g),
without any notice to the Company or any other Borrower or any other act by
the Administrative Agent or the Banks, the Total Commitment shall thereupon
terminate and the Loans and all other amounts payable hereunder (together
with accrued interest thereon) shall thereupon be and become immediately due
and payable upon such occurrence, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by the
Company, each other Borrower and ABI. Simultaneously with the giving of any
such notice to the Company, the Administrative Agent shall notify all of the
Banks thereof.
Section 6.03. Notice of Default. The Administrative Agent shall
-----------------
give notice to
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the Company under Section 6.01(c) promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE ADMINISTRATIVE AGENT
Section 7.01. Appointment and Authorization. Each Bank irrevocably
-----------------------------
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof or thereof,
together with all such powers as are reasonably incidental thereto.
Section 7.02. Administrative Agent and Affiliates. The Person
-----------------------------------
serving as the Administrative Agent shall have the same rights and powers
under this Agreement as any other Bank and may exercise or refrain from
exercising the same as though it were not the Administrative Agent, and such
Person and its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Company or any Affiliate or
Subsidiary of the Company as if it were not the Administrative Agent
hereunder.
Section 7.03. Action by Administrative Agent. The obligations of
------------------------------
the Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent
shall not be required to take any action with respect to any Default, except
as expressly provided in Article VI.
Section 7.04. Consultation with Experts. The Administrative Agent
-------------------------
may consult with legal counsel (who may be counsel for the Company),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice or opinion of such counsel, accountants or
experts.
Section 7.05. Liability of Administrative Agent. Neither the
---------------------------------
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or not taken by it, him or her in
connection herewith (a) with the consent or at the request of the Required
Banks or (b) in the absence of its, his or her own gross negligence or
willful misconduct. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Company, ABI or any Eligible Subsidiary; (iii) the
satisfaction of any condition specified in Article III, except receipt of
items required to be delivered to the Administrative Agent; or (iv) the
validity, effectiveness or genuineness of this Agreement or any other
instrument or writing furnished in connection herewith. The Administrative
Agent shall not incur any liability by acting in reliance upon any notice,
consent, certificate, statement or other writing (which may be a bank wire,
telecopy or similar writing) believed by it to be genuine or to be signed or
sent by the proper party or parties. The Administrative Agent shall be
entitled to assume that no Default has occurred and is continuing, unless the
Administrative Agent has actual knowledge, or has been notified by the
Company, of such Default, or has been notified by a Bank that such Bank
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considers that such Default (specifying in detail the nature thereof) has
occurred and is continuing.
Section 7.06. Indemnification. Each Bank shall, ratably in
---------------
accordance with its Commitment, indemnify the Administrative Agent (to the
extent not reimbursed by the Company or ABI) against any cost, expense
(including counsel fees and disbursements and the costs of investigation,
discovery and deposition), claim, demand, action, loss or liability (except
such as result from the Administrative Agent's gross negligence or willful
misconduct) that the Administrative Agent may suffer or incur in connection
with this Agreement or any action taken or omitted by the Administrative
Agent hereunder.
Section 7.07. Credit Decision. Each Bank represents and
---------------
acknowledges that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also represents and
acknowledges that it will, independently and without reliance on the
Administrative Agent or any other Bank, 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 any action under this Agreement.
Section 7.08. Resignation of Administrative Agent. The
-----------------------------------
Administrative Agent may resign at any time by giving written notice thereof
to the Banks and the Company. Upon any such resignation, the Company, with
the consent of the Required Banks, shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall
have been so appointed by the Company, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving
of notice of resignation, then the retiring Administrative Agent may, on
behalf of the Banks, appoint a successor Administrative Agent, which shall be
(a) a commercial bank organized under the laws of the United States or of any
State thereof and having a combined capital and surplus of at least
$500,000,000 or (b) a Bank. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges, and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall thereupon
be discharged from its duties and obligations as Administrative Agent under
this Agreement. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Article VII shall continue to
inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement.
Section 7.09. Advisor, Lead Arranger, Book Manager and
----------------------------------------
Co-Syndication Agents. Notwithstanding anything herein to the contrary, none
---------------------
of the Advisor, Lead Arranger, Book Manager and Co-Syndication Agents listed
on the cover page of this Agreement shall have any duties or responsibilities
hereunder in their respective capacity as such, except in their respective
capacity, if any, as a Bank.
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES
Section 8.01. Basis for Determining Interest Rate Inadequate or
-------------------------------------------------
Unfair. If with respect to any Interest Period:
------
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the Adjusted LIBO Rate (in the case of a
Syndicated Loan) or the LIBO Rate (in the case of a Money Market LIBOR
Loan) for such Interest Period, or
(b) in the case of a Syndicated Borrowing, Banks having 50% or more
of the Total Commitment notify the Administrative Agent that the Adjusted
CD Rate or the Adjusted LIBO Rate, as the case may be, as determined by
the Administrative Agent will not adequately and fairly reflect the cost
to such Banks of maintaining or funding their CD Loans or Euro-Dollar
Loans, as the case may be, for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Company
(on behalf of the applicable Borrower) and the Banks, and until the
Administrative Agent notifies the Company that the circumstances giving rise
to such suspension no longer exist, the obligations of the Banks to make CD
Loans or Euro-Dollar Loans, as the case may be, shall be suspended; provided
--------
that if the circumstances giving rise to such notice do not affect all the
Banks, then requests by the Company (on behalf of the applicable Borrower)
for Syndicated Borrowings may be made to the Banks that are not affected
thereby. Each Bank which notifies the Administrative Agent pursuant to
subsection (b) of this Section agrees that, in the event that after such
notice the Adjusted CD Rate or Adjusted LIBO Rate, as the case may be, shall
thereafter adequately and fairly reflect the cost to such Bank of maintaining
or funding its CD Loans or Euro-Dollar Loans, as the case may be, for any
Interest Period, it shall notify the Administrative Agent of such fact. In
the event that the Administrative Agent shall receive notice from such Banks
pursuant to the preceding sentence that the conditions set forth in
subsection (b) of this Section no longer exist, the Administrative Agent
shall notify the Company thereof. Unless the Company notifies the
Administrative Agent at least two Domestic Business Days before the date of
any Fixed Rate Borrowing for which a Notice of Borrowing has previously been
given that it elects on behalf of the applicable Borrower not to borrow on
such date, (i) if such Fixed Rate Borrowing is a Syndicated Borrowing, such
Borrowing shall instead be made as a Base Rate Borrowing and (ii) if such
Fixed Rate Borrowing is a Money Market LIBOR Borrowing, the Money Market
LIBOR Loans comprising such Borrowing shall bear interest for each day from
and including the first day to but excluding the last day of the Interest
Period applicable thereto at the Base Rate for such day.
Section 8.02. Illegality. If, after the date hereof, the adoption
----------
of any applicable law, rule or regulation, or any change therein, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by any Bank (or its Euro-Dollar
Lending Office) with any request or directive (whether or not having the
force of law) of any such governmental authority, central bank or comparable
agency, shall make it unlawful or impossible for any Bank (or its
49
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Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans
and such Bank shall so notify the Administrative Agent, the Administrative
Agent shall forthwith give notice thereof to the other Banks and the Company,
and until such Bank notifies the Company and the Administrative Agent that
the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be suspended. Each
Bank which gives any notice pursuant to this Section agrees that, in the
event that the circumstances giving rise to such suspension no longer exist,
such Bank shall notify the Administrative Agent of such fact. In the event
that the Administrative Agent shall receive notice from a Bank pursuant to
the preceding sentence of this Section, the Administrative Agent shall notify
the Company thereof. Before giving any notice to the Administrative Agent
pursuant to the first sentence of this Section, such Bank shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need
for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such Bank shall determine that it
may not lawfully continue to maintain and fund any of its outstanding
Euro-Dollar Loans to maturity and shall so specify in such notice, the
applicable Borrower or Borrowers shall immediately prepay in full the then
outstanding principal amount of each such Euro-Dollar Loan, together with
interest accrued thereon to the date of such prepayment. Concurrently with
prepaying each such Euro-Dollar Loan, each applicable Borrower shall borrow a
Base Rate Loan in an equal principal amount from such Bank (on which interest
and principal shall be payable contemporaneously with the related Euro-Dollar
Loans of the other Banks), and such Bank shall make such a Base Rate Loan.
Section 8.03. Increased Cost. (a) If, on or after (x) the date
--------------
hereof, in the case of any Syndicated Loan or any obligation to make
Syndicated Loans, or (y) the date of the related Money Market Quote, in the
case of any Money Market Loan, or (z) the date that the applicable Bank
agrees to make a Negotiated Rate Loan, in the case of any Negotiated Rate
Loan, the adoption of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Lending Office) with any request or directive (whether or not having the
force of law) of any such governmental authority, central bank or comparable
agency:
(i) shall subject any Bank (or its Lending Office) to any tax, duty
or other charge with respect to its Fixed Rate Loans or its obligation to
make Fixed Rate Loans, or shall change the basis of taxation of payments
to any Bank (or its Lending Office) of the principal of or interest on
its Fixed Rate Loans or any other amounts due under this Agreement in
respect of its Fixed Rate Loans or its obligation to make Fixed Rate
Loans (except for changes in the rate of tax on the overall net income
of such Bank or its Lending Office imposed by the jurisdiction in which
such Bank's principal executive office or Lending Office, as the case
may be, is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit, deposit insurance assessment (excluding with respect to any
CD Loan any such assessment
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included in an applicable Assessment Rate) or similar requirement
(including, without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but excluding (A) with
respect to any CD Loan, any such requirement included in an applicable
CD Reserve Percentage, and (B) with respect to any Euro-Dollar Loan,
any such requirement included in an applicable Euro-Dollar Reserve
Percentage, and (C) any requirement for which such Bank is entitled to
compensation under subsection (b) of this Section) against assets of,
deposits with or for the account of, or credit extended by, any Bank or
its Lending Office or shall impose on any Bank (or its Lending Office) or
on the United States market for certificates of deposit or the London
interbank market any other condition affecting its Fixed Rate Loans or
its obligation to make Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank
(or its Lending Office) of making or maintaining any Fixed Rate Loan, or to
reduce the amount of any sum received or receivable by such Bank (or its
Lending Office) under this Agreement with respect thereto, by an amount
deemed by such Bank to be material, then, within 15 days after demand by such
Bank to the Company (with a copy to the Administrative Agent), the applicable
Borrower or Borrowers shall pay for the account of such Bank, as additional
interest, such additional amount or amounts as will compensate such Bank for
such increased cost or reduction; provided that if such Bank fails to notify
--------
the Company that it intends to claim or may claim compensation for such
increased cost or reduction within 45 days after such Bank has knowledge of
such increased cost or reduction, the applicable Borrower shall not be
obligated to compensate such Bank for such increased cost or reduction
accruing prior to the date on which such Bank first notifies the Company that
it intends to claim such compensation. In determining such additional amount
or amounts, such Bank may use any reasonable averaging and attribution
methods.
(b) If, after the date hereof, the Administrative Agent or any Bank
shall have determined that the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change
in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation
or administration thereof (including a change resulting from a determination
of a court or regulatory authority), or compliance by the Administrative
Agent or any Bank (or its Lending Office or holding company) with any request
or directive regarding capital adequacy (whether or not having the force of
law) of any such governmental authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on the
Administrative Agent's or such Bank's capital (or the capital of its holding
company) as a consequence of its obligations hereunder to a level below that
which the Administrative Agent or such Bank or its holding company could have
achieved but for such adoption, change or compliance (taking into
consideration the Administrative Agent's or such Bank's, as the case may be,
policies with respect to capital adequacy) by an amount deemed by the
Administrative Agent or such Bank to be material, then from time to time,
within 15 days after demand by the Administrative Agent or such Bank (with a
copy to the Administrative Agent), the Company shall pay to the
Administrative Agent or such Bank, as the case may be, such additional amount
or amounts as will compensate the Administrative Agent or such Bank or its
holding company for such reduction. In determining any additional amount or
amounts payable under this subsection (b),
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the Administrative Agent or such Bank may use any reasonable averaging and
attribution methods; provided that if after the date hereof, pursuant to any
--------
applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change in interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, the credit quality of a bank's
loans, investments or commitments is required or permitted to be taken into
account in determining capital adequacy, then such averaging and attribution
methods shall include a consideration of the credit quality of the Loans
relative to the credit quality of such Bank's other loans, investments or
commitments, as the case may be.
(c) The Administrative Agent or each relevant Bank, as the case
may be, will promptly notify the Company and the Administrative Agent of any
event of which it has knowledge occurring after the date hereof which will
entitle the Administrative Agent or such Bank to compensation pursuant to
this Section and will designate a different Lending Office if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of the Administrative Agent or
such Bank, be otherwise disadvantageous to the Administrative Agent or such
Bank. A certificate of the Administrative Agent or any Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error.
(d) Each Bank agrees that if, after such Bank has made a demand for
compensation pursuant to this Section, the circumstances giving rise to such
demand no longer exist, such Bank shall notify the Administrative Agent of
such fact. In the event that the Administrative Agent shall receive notice
from a Bank pursuant to the preceding sentence of this Section, the
Administrative Agent shall notify the Company thereof.
Section 8.04. Base Rate Loans Substituted for Affected Fixed Rate
---------------------------------------------------
Loans. If (a) the obligation of any Bank to make Euro-Dollar Loans has been
-----
suspended pursuant to Section 8.02 or (b) any Bank has demanded compensation
under Section 2.15 or 8.03, and the Company shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through the
Administrative Agent, have elected that the provisions of this Section shall
apply to such Bank, then, unless and until such Bank notifies the Company and
the Administrative Agent that the circumstances giving rise to such
suspension or demand for compensation no longer apply, all Loans which would
otherwise be made by such Bank as CD Loans or Euro-Dollar Loans, as the case
may be, shall be made instead as Base Rate Loans (on which interest and
principal shall be payable contemporaneously with the related Fixed Rate
Loans of the other Banks).
Section 8.05. Substitution of Bank. If notice has been given by
--------------------
any Bank pursuant to Section 8.02 or 8.03 requiring or permitting Fixed Rate
Loans of such Bank to be prepaid, or requesting compensation under Section
2.15 or 8.03(b), then the Company shall have the right, in consultation with
the Administrative Agent, to seek one or more satisfactory substitute
financial institutions (which may be one or more of the Banks) to purchase
the Loans and assume the Commitment of such Bank.
ARTICLE IX
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GUARANTEES
Section 9.01. The Guarantees. (a) As an inducement to the Banks to
--------------
enter into this Agreement and to make the Loans provided for herein, and in
consideration for the direct and indirect benefits to be derived by ABI as a
result of Loans to be made hereunder and the guarantee fee paid to ABI by the
Company, ABI hereby unconditionally guarantees the full and punctual payment
(whether at stated maturity, upon acceleration or otherwise) of the principal
of and interest on each Loan to the Company, and the full and punctual
payment of all other amounts payable by the Company under this Agreement,
including, without limitation, the Company's obligations under subsection (b)
of this Section. ABI agrees that upon failure by the Company to pay
punctually any such amount, ABI shall forthwith on demand pay the amount not
so paid at the place and in the manner specified in this Agreement.
(b) The Company hereby unconditionally guarantees the full and
punctual payment (whether at stated maturity, upon acceleration or otherwise)
of the principal of and interest on each Loan to any Eligible Subsidiary, and
the full and punctual payment of all other amounts payable by any Eligible
Subsidiary under this Agreement. The Company agrees that upon failure by any
Eligible Subsidiary to pay punctually any such amount, the Company shall
forthwith on demand pay the amount not so paid at the place and in the manner
specified in this Agreement.
(c) The obligations of ABI and the Company hereunder shall be
guarantees of payment when due and not of collection.
Section 9.02. Guarantees Unconditional. The obligations of ABI
------------------------
and the Company hereunder shall be unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged
or otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Company or any other
Borrower under this Agreement or any Note, by operation of law or
otherwise;
(ii) any modification or amendment of or supplement to this
Agreement or any Note;
(iii) any release, non-perfection or invalidity of any direct
or indirect security, or of any Guarantee or other liability of any
third party, for any obligation of the Company or any other Borrower
under this Agreement or any Note;
(iv) any change in the corporate existence, structure or ownership
of the Company or any other Borrower, or any insolvency, bankruptcy,
reorganization or other similar proceeding in respect of or affecting
the Company or any other Borrower or its assets or any release or
discharge of any obligation contained in this Agreement or any Note;
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(v) the existence of any claim, set-off or other rights which ABI
or the Company may have at any time against the Company or any other
Borrower, the Administrative Agent, any Bank or any other Person, whether
in connection herewith or any unrelated transactions, provided that
--------
nothing herein shall prevent the assertion of any such claim by separate
suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against the
Company or any other Borrower for any reason of this Agreement or any
Note, or any provision of any applicable law or regulation purporting
to prohibit the payment by the Company or any other Borrower of the
principal of or interest on any Loan or any other amount payable by the
Company or any other Borrower under this Agreement;
(vii) any invalidity or unenforceability of the Guaranty Fee
Agreement or any failure to make any payment of the guarantee fees
provided for thereunder; or
(viii) any failure of any Bank or the Administrative Agent to
assert any claim or demand or to enforce any right or remedy against the
Company, any other Borrower, ABI or any other guarantor or any other act
or omission to act or delay of any kind by the Company, any other
Borrower, the Administrative Agent, any Bank or any other Person, or any
other circumstance whatsoever which might, but for the provisions of this
clause (viii), constitute a legal or equitable discharge of the
obligations of ABI or the Company hereunder.
Section 9.03. Discharge Only Upon Payment in Full Reinstatement in
----------------------------------------------------
Certain Circumstances. Except as provided in Section 9.07, the obligations
---------------------
of ABI and the Company hereunder shall remain in full force and effect until
the principal of and interest on the Loans and all other amounts payable
under this Agreement shall have been paid in full. If at any time any
payment of the principal of or interest on any Loan or any other amount
payable by the Company or any other Borrower under this Agreement is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Company or any other Borrower or
otherwise, the obligations of ABI and the Company hereunder with respect to
such payment shall be reinstated as though such payment had been due but not
made at such time.
Section 9.04. Waiver by ABI and the Company. Each of ABI and the
-----------------------------
Company irrevocably waives (a) acceptance hereof, (b) presentment, demand,
protest and any notice not provided for herein, and (c) any requirement that
at any time any action be taken by any Person against any Borrower or any
other Person.
Section 9.05. Subrogation. Upon making any payment under its
-----------
guarantee hereunder, ABI or the Company, as the case may be, shall be
subrogated to the rights of the payee against the applicable Borrower with
respect to such payment; provided that neither ABI nor the Company shall
--------
enforce any right to payment by reason of subrogation until all amounts of
principal of and interest on the Loans and all other amounts payable by the
Company and each other Borrower under this Agreement have been paid in full.
Section 9.06. Stay of Acceleration. If acceleration of the time
--------------------
for payment of any
54
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amount payable by the Company or any other Borrower under this Agreement is
stayed upon the insolvency, bankruptcy or reorganization of the Company or
any other Borrower, all such amounts otherwise subject to acceleration under
the terms of this Agreement shall nonetheless be payable by each of ABI and
the Company hereunder forthwith on demand by the Administrative Agent made at
the request of the requisite proportion of the Banks specified in Article VI.
Section 9.07. Termination of ABI Guarantee. At the option of the
----------------------------
Company, the Company may terminate ABI's obligations under this Agreement
(including, without limitation, this Article) without the consent of the
Banks, provided that (i) the Company shall have terminated all of ABI's
--------
Guarantees with respect to other Funded Debt of the Company on or prior
to the date of such termination, (ii) no Default shall have occurred and
be continuing as of such date and (iii) the Company shall have delivered to
the Administrative Agent and the Banks a certificate to the effect that the
foregoing conditions have been complied with, whereupon ABI shall be released
from all of its obligations under this Agreement (including, without
limitation, this Article), ABI shall no longer be a party to this Agreement
and all provisions of this Agreement relating to such obligations shall be of
no further force and effect. Notwithstanding the foregoing, each of the
Company and ABI hereby agrees that the obligations of ABI under this
Agreement (including, without limitation, this Article) and all provisions of
this Agreement relating to such obligations shall be reinstated if, following
the termination of the ABI Guarantee pursuant to this Section, ABI Guarantees
any Funded Debt of the Company or any Restricted Subsidiary having an
aggregate outstanding principal amount in excess of $50,000,000, such
reinstatement to be evidenced by an instrument satisfactory to the
Administrative Agent that the Company shall cause ABI to execute and deliver
to the Administrative Agent within 30 days after the entering into of any
such Guarantee (it being understood that such reinstatement shall be
effective notwithstanding the failure to deliver such instrument).
ARTICLE X
MISCELLANEOUS
Section 10.01. Notices. All notices, requests and other
-------
communications to any party hereunder shall be in writing (including bank
wire, telecopier or similar writing) and shall be given to such party:
(a) in the case of the Company or the Administrative Agent, at its address
or telecopier number set forth on the signature pages hereof, (b) in the case
of any other Bank, at its address or telecopier number set forth in its
Administrative Questionnaire or (c) in the case of any party, such other
address or telecopier number as such party may hereafter specify for the
purpose by notice to the Administrative Agent and the Company. Each such
notice, request or other communication shall be effective (i) if given by
mail, five days after such communication is deposited in the mails with
appropriate first class, certified or registered postage prepaid, addressed
as aforesaid, or (ii) if given by any other means, when delivered at the
telecopier number or address specified in this Section; provided that notices
--------
to the Administrative Agent under Section 2.03, 2.04, 2.05 or 2.10 or Article
VI or VIII shall not be effective until received. All notices, requests and
other communications to or from any Eligible Subsidiary hereunder shall be
valid and effective if given to or from the Company as agent for such
Eligible Subsidiary.
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Section 10.02. No Waivers. No failure or delay by the
----------
Administrative Agent or any Bank in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 10.03. Expenses; Documentary Taxes; Indemnity.
--------------------------------------
(a) The Company agrees to pay (i) all reasonable out-of-pocket expenses
of the Administrative Agent, including reasonable fees and disbursements
of special counsel for the Administrative Agent, in connection with the
preparation of this Agreement, any waiver or consent hereunder or any
amendment hereof, and (ii)if an Event of Default occurs, all out-of-pocket
expenses incurred by the Administrative Agent or any Bank, including
reasonable fees and disbursements of either internal or external counsel
(as the Administrative Agent or such Bank chooses), in connection with such
Event of Default and collection and other enforcement proceedings resulting
therefrom. The Company shall indemnify each Bank against any transfer taxes,
documentary taxes or similar assessments or charges made by any governmental
authority by reason of the execution and delivery of this Agreement.
(b) The Company agrees to indemnify each Bank and the
Administrative Agent against, and hold each Bank and the Administrative Agent
harmless from, any and all liabilities, losses, damages, costs and expenses
of any kind (including, without limitation, the reasonable fees and
disbursements of counsel for any Bank or the Administrative Agent in
connection with any investigative, administrative or judicial proceeding,
whether or not such Bank or the Administrative Agent shall be designated
a party thereto), which may be incurred by any Bank or the Administrative
Agent, relating to or arising out of this Agreement or any actual or proposed
use of the proceeds of Loans hereunder; provided that neither any Bank nor
--------
the Administrative Agent shall have the right to be indemnified hereunder for
its own gross negligence or willful misconduct as determined by a court of
competent jurisdiction.
Section 10.04. Sharing of Setoffs. Each Bank agrees that if it
------------------
shall, by exercising any right of set-off or counterclaim or otherwise,
receive payment of a proportion of the aggregate amount of principal and
interest due with respect to any Loan held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Loan held by such other Bank,
the Bank receiving such proportionately greater payment shall purchase such
participations in the Loans held by the other Banks (to which purchase the
Company and each other applicable Borrower hereby consents), and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Loans held by the Banks shall be
shared by the Banks pro rata; provided that nothing in this Section shall
--------
impair the right of any Bank to exercise any right of set-off or counterclaim
it may have and to apply the amount subject to such exercise to the payment
of indebtedness of the Company, any other Borrower or ABI other than its
indebtedness hereunder. The Company, each other Borrower and ABI agree, to
the fullest extent they may effectively do so under applicable law, that any
holder of a participation in a Loan granted in accordance with this Agreement
or any holder of a participation in a Loan acquired pursuant to the
arrangements described in this Section may exercise rights of set-off or
56
55
counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the applicable
Borrower, the Company or ABI, as the case may be, in the amount of such
participation.
Section 10.05. Amendments and Waivers. (a) The Company, (so long
----------------------
as the ABI Guarantee shall be in effect) ABI and the Administrative Agent may
amend or supplement this Agreement without notice to or the consent of any
Bank or any Eligible Subsidiary (i) to cure any ambiguity, defect or
inconsistency, (ii) to provide for the substitution of one or more financial
institutions for a Bank pursuant to Section 8.05, or (iii) to make any other
change that does not adversely affect the rights of any Bank.
(b) Except as provided in subsection (a) of this Section, any
provision of this Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Company, (so long as
the ABI Guarantee shall be in effect) ABI and the Required Banks (and, if the
rights or duties of the Administrative Agent are affected thereby, by the
Administrative Agent); provided that no such amendment or waiver shall,
--------
unless signed by all the Banks affected by such amendment or waiver, (i)
increase the Commitment of any Bank or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or
any fees hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder, or (iv) alter the
absolute and unconditional character of the ABI Guarantee or the guarantee of
the Company contained in Article IX, and no such amendment or waiver shall,
unless signed by all the Banks, change the percentage of the Total Commitment
or of the aggregate unpaid principal amount of the Loans, or the number of
Banks, which shall be required for the Banks or any of them to take any
action under this Section or any other provision of this Agreement. Each
Eligible Subsidiary, by its execution of an Election to Participate, grants
to the Company an irrevocable power of attorney to enter into amendments or
waivers of this Agreement on behalf of such Eligible Subsidiary, and agrees
that it shall be bound by any such amendment or waiver executed by the
Company, whether or not such amendment or waiver is executed by the Company
in the name of such Eligible Subsidiary.
Section 10.06. Successors and Assigns. (a) The provisions of
----------------------
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that (i) neither
the Company nor ABI may assign or otherwise transfer any of its rights under
this Agreement without the prior written consent of all Banks and (ii) no
Bank may assign or otherwise transfer its Commitment in whole or in part, or
sell, assign or otherwise transfer its Loans or grant participations in its
Loans or rights under this Agreement in whole or in part, other than as the
result of the designation of a different Lending Office in accordance with
this Agreement or as permitted under Section 8.05, 10.04 and the following
provisions of this Section.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment
-----------
or any or all of its Loans; provided that such Bank shall, except in the case
--------
of such a grant (i) pursuant to Section 10.04, (ii) in respect of Money
Market Loans or (iii) to a Bank Affiliate, obtain the Company's prior consent
to such grant. In the event of any such grant by a Bank of a participating
interest to a
57
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Participant, whether or not upon notice to the Company and the Administrative
Agent, such Bank shall remain responsible for the performance of its
obligations hereunder, and the Company, each other Borrower and the
Administrative Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this
Agreement. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole
right and responsibility to enforce the obligations of the Company and each
other Borrower hereunder including, without limitation, the right to approve
amendments, modifications or waivers of the provisions of this Agreement as
set forth in this Section; provided that such participation agreement may
--------
provide that such Bank will not agree to any modification, amendment or
waiver of this Agreement described in clause (i), (ii) or (iii) of Section
10.05(b) without the consent of the Participant. The Company agrees that
each Participant shall, to the extent provided in its participation agreement
and subject to subsection (e) of this Section, be entitled to the benefits of
Article VIII with respect to its participating interest.
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
--------
rights and obligations under this Agreement, and such Assignee shall assume
such rights and obligations, pursuant to an Assignment and Acceptance in
substantially the form of Exhibit I hereto executed by such Assignee and such
transferor Bank, with (and subject to) the consent of the Company and the
Administrative Agent (which consents shall not be required in the case of an
assignment (A) by a Bank to any other Bank so long as such assignment does
not (x) cause the aggregate amount of the Commitments of any Bank and its
Bank Affiliates to exceed $300,000,000 or (y) increase the amount of the
Commitments of any Bank and its Bank Affiliates if the aggregate amount of
the Commitments of such Bank and its Bank Affiliates exceeds $300,000,000
immediately prior to such assignment or (B) by a Bank to its Bank Affiliate
so long as (v) if such transferor Bank is a "depository institution" (within
the meaning of Regulation A of the Board of Governors of the Federal Reserve
System), such Bank Affiliate shall also be a depository institution and
(w) at the time of such assignment S&P or Xxxxx'x shall rate the senior,
unsecured, long-term debt of such transferor Bank and the rating or ratings
for senior, unsecured, long-term debt of such Bank Affiliate by S&P and/or
Xxxxx'x, as applicable, shall not be lower than such rating(s) of such
transferor Bank); provided that (i) such assignment may, but need not,
--------
include rights of the transferor Bank in respect of outstanding Money Market
Loans; (ii) except in the case of an assignment to a Bank or a Bank Affiliate
or an assignment of the entire remaining amount of the transferor Bank's
Commitment and outstanding Loans, the amount of such assignment shall not
be less than $5,000,000 and (iii) the Assignee, if it shall not be a Bank,
shall deliver to the Administrative Agent an Administrative Questionnaire.
Upon execution and delivery of such instrument and payment by such Assignee
to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and obligations of a
Bank with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. In connection with any such assignment, the transferor Bank or
such Assignee shall pay to the Administrative Agent an administrative fee for
processing such assignment in the amount of $3,500. If the Assignee is not
incorporated under the laws of
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the United States or a state thereof, it shall, prior to the first date on
which interest or fees are payable hereunder for its account, deliver to the
Company and the Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in
accordance with Section 2.15.
Notwithstanding anything to the contrary contained herein, any
Bank (a "Granting Bank") may grant to a special purpose vehicle (an "SPV")
------------- ---
of such Granting Bank, identified as such in writing from time to time by
the Granting Bank to the Administrative Agent and the Company, the option to
provide to any Borrower all or any part of any Loan that such Granting Bank
would otherwise be obligated to make to such Borrower hereunder, provided
--------
that (i) nothing herein shall constitute a commitment by any SPV to make any
Loan, (ii) if an SPV elects not to exercise such option or otherwise fails to
provide all or any part of such Loan, the Granting Bank shall be obligated to
make such Loan pursuant to the terms hereof and (iii) any Borrower may bring
any proceeding against the Granting Bank in order to enforce any rights of
such Borrower hereunder. The making of a Loan by an SPV hereunder shall
utilize the Commitment of the Granting Bank to the same extent, and as if,
such Loan were made by the Granting Bank. Each party hereto hereby agrees
that no SPV shall be liable for any payment under this Agreement for which
a Bank would otherwise be liable, for so long as, and to the extent that,
the related Granting Bank makes such payment. In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year
and one day after the payment in full of all outstanding commercial paper
or other senior indebtedness of any SPV, it will not institute against,
or join any other person in instituting against, such SPV any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or
similar proceedings under the laws of the United States or any State
thereof in respect of any claim arising under this Agreement. In addition,
notwithstanding anything to the contrary contained in this Section, any SPV
may, with the prior written consent of the Company and the Administrative
Agent (to the extent such consent is required under the immediately preceding
paragraph of this subsection (c)) but without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the
Granting Bank or to any financial institutions providing liquidity and/or
credit to or for the account of such SPV to fund the Loans made by such SPV
or to support the securities (if any) issued by such SPV and such SPV may
disclose, on a confidential basis, confidential information with respect to
the Company and its Subsidiaries to any rating agency, commercial paper
dealer or provider of a surety, guarantee or credit liquidity enhancement to
such SPV. This paragraph may not be amended without the consent of any SPV
at the time holding Loans under this Agreement.
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement to secure obligations of such Bank, including,
without limitation, to a Federal Reserve Bank, provided that any foreclosure
--------
or similar action taken with respect to such assignment to any Person other
than a Federal Reserve Bank shall be subject to the provisions of this
Section concerning assignments. No such assignment shall release the
transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03
than such Bank would have been
59
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entitled to receive with respect to the rights assigned or otherwise
transferred, unless such assignment or transfer is made (i) with the prior
consent of the Company, (ii) by reason of the provisions of Section 8.02 or
8.03 requiring such Bank to designate a different Lending Office under
certain circumstances or (iii) at a time when the circumstances giving rise
to such greater payment did not exist.
(f) If the Fixed Rate Loans of any Reference Bank are repaid
pursuant to Article VIII, the Administrative Agent shall, with the consent
of the Company and the Required Banks, appoint another Bank to act as a
Reference Bank hereunder.
(g) The Administrative Agent, acting solely for this purpose as an
agent of the Company, shall maintain at one of its offices in New York City a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Banks, and the Commitments of,
and principal amount of the Loans owing to, each Bank pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall
--------
be conclusive, and the Company, the Administrative Agent and the Banks may
treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Bank hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Company, any other Borrower and any Bank, at any reasonable
time and from time to time upon reasonable prior notice.
Section 10.07. Collateral. Each of the Banks represents and
----------
warrants to the Administrative Agent and to the other Banks that it in good
faith is not relying on any "margin stock" (as defined in Regulation U of the
Board of Governors of the Federal Reserve System) as collateral in the
extension or maintenance of the credit provided for in this Agreement.
Section 10.08. New York Law; Submission to Jurisdiction. This
----------------------------------------
Agreement and any other document delivered hereunder shall be construed in
accordance with and governed by the law of the State of New York. Each of
the Company, ABI and the Eligible Subsidiaries hereby submits to the
nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York State court sitting in New
York City for purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby. Each of the Company,
ABI and the Eligible Subsidiaries irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has been brought in an
inconvenient forum.
Section 10.09. Counterparts; Effectiveness. This Agreement may be
---------------------------
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Agreement shall become effective when the
Administrative Agent shall have received counterparts hereof signed by each
of the parties hereto (or, in the case of any Bank as to which an executed
counterpart shall not have been received, receipt by the Administrative Agent
in form satisfactory to it of telecopy or other written confirmation from
such Bank of execution of a counterpart hereof by such Bank) and when the
conditions specified in Section 3.02 shall have been satisfied or waived.
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Section 10.10. Independence of Covenants. All covenants hereunder
-------------------------
shall be given independent effect so that if a particular action or condition
is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitations of,
another covenant shall not avoid the effectiveness of the first covenant.
Section 10.11. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, ABI,
--------------------
THE ELIGIBLE SUBSIDIARIES, THE ADMINISTRATIVE AGENT AND THE BANKS HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 10.12. Waiver Under Pre-Existing Credit Agreements.
-------------------------------------------
By its execution hereof, each undersigned Bank that also is a party to the
credit agreement referred to in clause (f) of Section 3.02 hereby waives the
provisions of such credit agreement that would require advance notice for the
termination of commitments thereunder or the prepayment of loans thereunder;
provided that (a) the foregoing waiver shall apply only to the termination
--------
of all commitments under such credit agreement and repayment of all loans
outstanding thereunder in connection with the effectiveness of this Agreement
and (b) the Company shall, in lieu of advance notice of any such termination
or prepayment, give notice thereof to the Agent (as defined in such credit
agreement) on the date of such termination or prepayment.
Section 10.13. Action by the Company on Behalf of the Borrowers.
------------------------------------------------
Any payment obligation or other obligation of any Borrower hereunder may be
performed by the Company on behalf of such Borrower, and such performance by
the Company shall be deemed to satisfy the corresponding obligation of such
Borrower hereunder.
Section 10.14. Survival. All covenants, agreements, representations
--------
and warranties made by the Company, ABI or any other Borrower herein and in
the certificates or other instruments delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by
the other parties hereto and shall survive the execution and delivery of this
Agreement and the making of any Loans, regardless of any investigation made
by any such other party or on its behalf and notwithstanding that the
Administrative Agent or any Bank may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other
amount payable under this Agreement is outstanding and unpaid and so long as
the Commitments have not expired or terminated. The provisions of Sections
2.13, 2.15, 8.03, 9.03 and 10.03 and Article VII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
ANHEUSER-XXXXX COMPANIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President and Treasurer
Address for Notices:
Xxx Xxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telecopy: 000-000-0000
Telephone: 000-000-0000
Attention: Vice President and Treasurer
ANHEUSER-XXXXX, INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Treasurer
Address for Notices:
Xxx Xxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telecopy: 000-000-0000
Telephone: 000-000-0000
Attention: Treasurer
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THE CHASE MANHATTAN BANK, as
Administrative Agent
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
Address for Notices:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
BANKS
-----
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
BANK ONE, NA (Main Office Chicago)
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CITIBANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Joint General Manager
BANK OF AMERICA, N.A.
By: /s/ Xxxx XxXxxxx
-------------------------
Name: Xxxx XxXxxxx
Title: Vice President
UBS AG, STAMFORD BRANCH
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxxxx XxXxxxxx
-------------------------
Name: Xxxxxxx XxXxxxxx
Title: Director
Loan Portfolio Support, US
REVOLVING COMMITMENT VEHICLE
CORPORATION
By: Xxxxxx Guaranty Trust Company of New
York, as Attorney-In-Fact for Revolving
Commitment Vehicle Corporation
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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MELLON BANK, N.A.
By: /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxxxxx Xxxxx
-------------------------
Name: Xxxxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
SUNTRUST BANK
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxx Xxxxxx Xxxx
-------------------------
Name: Xxxxx Xxxxxx Xxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
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ABN AMRO BANK N.V.
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Group Vice President
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Group Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx X. XxXxxxxxxx
-------------------------
Name: Xxxxxxx X. XxXxxxxxxx
Title: Vice President
FIRSTAR BANK, N.A.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
66
SCHEDULE I
COMMITMENTS
BANK COMMITMENT
THE CHASE MANHATTAN BANK $250,000,000
BANK ONE, NA $225,000,000
CITIBANK, N.A. $225,000,000
THE INDUSTRIAL BANK OF JAPAN, LIMITED $225,000,000
BANK OF AMERICA, N.A. $175,000,000
UBS AG, STAMFORD BRANCH $175,000,000
REVOLVING COMMITMENT VEHICLE CORPORATION $175,000,000
MELLON BANK, N.A. $100,000,000
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH $100,000,000
SUNTRUST BANK $100,000,000
XXXXX FARGO BANK, NATIONAL ASSOCIATION $50,000,000
ABN AMRO BANK N.V. $50,000,000
THE BANK OF NEW YORK $50,000,000
HUNTINGTON NATIONAL BANK $50,000,000
FIRSTAR BANK, N.A. $50,000,000
00
XXXXXXX X
XXXX
Xxx Xxxx, Xxx Xxxx
_________, 200_
For value received, [ANHEUSER-XXXXX COMPANIES, INC.][NAME OF ELIGIBLE
SUBSIDIARY], a _________ Delaware corporation (the "Borrower"), promises to
--------
pay to the order of ______________ (the "Bank"), for the account of its
----
Lending Office, the unpaid principal amount of each Loan made by the Bank to
the Borrower pursuant to the Credit Agreement referred to below on the last
day of the Interest Period relating to such Loan. The Borrower promises to
pay interest on the unpaid principal amount of each such Loan on the dates
and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at the office
of The Chase Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
provided that all payments of principal of and interest on any Negotiated
--------
Rate Loan advanced by the Bank in a currency other than U.S. Dollars shall be
made in the currency in which such Negotiated Rate Loan is denominated at
such location as agreed with the Bank.
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank
and, prior to any transfer hereof, appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding shall
be endorsed by the Bank on the schedule attached hereto, or on a continuation
of such schedule attached to and made a part hereof; provided that the
--------
failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit
Agreement.
This note is one of the Notes referred to in the Credit Agreement dated
as of June 30, 2000 (as amended from time to time, the "Credit Agreement"),
----------------
among [the Borrower][Anheuser-Xxxxx Companies, Inc. (the "Company")],
-------
Anheuser-Xxxxx, Incorporated, as Guarantor ("ABI"), the Banks party thereto
---
and The Chase Manhattan Bank, as Administrative Agent. Terms defined in the
Credit Agreement are used herein with the same meanings. Reference is made
to the Credit Agreement for provisions for the prepayment, the acceleration
of the maturity and the limitations on the transferability of this Note.
[ANHEUSER-XXXXX COMPANIES, INC.]
[NAME OF ELIGIBLE SUBSIDIARY]
By _________________________________
Name:
Title:
68
2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
___________________________________________________________________________________________________________
Date Amount of Type of Currency* Amount of Maturity Notation
Loan Loan Principal Date Made By
Repaid
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
___________________________________________________________________________________________________________
-----------------------------
* Only applicable to Negotiated Rate Loans made in a currency other than U.S.
dollars.
69
EXHIBIT B
Form of Money Market Quote Request
----------------------------------
[Date]
To: The Chase Manhattan Bank (the "Administrative Agent")
--------------------
From: Anheuser-Xxxxx Companies, Inc.
Re: Credit Agreement dated as of June 30, 2000 among Anheuser-Xxxxx
Companies, Inc., Anheuser-Xxxxx, Incorporated, the Banks party thereto
and the Administrative Agent (as amended from time to time, the
"Credit Agreement")
----------------
We hereby give notice pursuant to Section 2.04 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: ____________________
Principal Amount: 1 ____________________
Interest Period: 2 ____________________
[Borrower: ____________________]
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the LIBO Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
ANHEUSER-XXXXX COMPANIES, INC.
By _________________________________
Name:
Title:
[FN]
-----------------------------
1 Amount must be $10,000,000 or a larger multiple of $1,000,000.
2 Not less than 7 days, subject to the provisions of the definition of
Interest Period.
70
EXHIBIT C
Form of Invitation for Money Market Quotes
------------------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes to Anheuser-Xxxxx, Companies, Inc.
(the "Company")
-------
Pursuant to Section 2.04 of the Credit Agreement dated as of June 30,
2000, among the Company., Anheuser-Xxxxx, Incorporated, the Banks party
thereto and the undersigned, as Administrative Agent, we are pleased on
behalf of the Company to invite you to submit Money Market Quotes to the
Company for the following proposed Money Market Borrowing(s):
Date of Borrowing: ____________________
Principal Amount: ____________________
Interest Period: ____________________
[Borrower: ____________________]
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the LIBO Rate.]
Please respond to this invitation by no later than [9:30 a.m.]
[10:00 a.m.] (New York City time) [date].
THE CHASE MANHATTAN BANK
By _________________________________
Name:
Title:
71
EXHIBIT D
Form of Money Market Quote
--------------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Money Market Quote to Anheuser-Xxxxx Companies, Inc. (the "Company")
-------
In response to your invitation on behalf of the Company dated
____________, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ____________________________________________
2. Person to contact at Quoting Bank: ________________________
3. Date of Borrowing: _______________________________________1
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
[FN]
-----------------------------
1 As specified in the related Invitation.
72
2
Principal Interest [Money Market [Absolute Rate 5]
Amount 2 Period 3 Margin 4] ---------------
-------- -------- --------
$
$
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed $__________.]
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Credit Agreement
dated as of June 30, 2000, among the Company, Anheuser-Xxxxx, Incorporated,
the Banks party thereto and yourselves, as Administrative Agent, irrevocably
obligate us to make the Money Market Loan(s) for which any offer(s) are
accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated: ________________ By __________________________
Name:
Title:
[FN]
-----------------------------
2 Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offers exceeds the amount the Bank is willing to lend. Bids must be made for
$10,000,000 or a larger multiple of $1,000,000.
3 Not less than 7 days, as specified in the related Invitation. No more
than five bids are permitted for each Interest Period.
4 Margin over or under the LIBO Rate determined for the applicable
Interest Period. Specify percentage (to the nearest 1/10,000th of 1%) and
specify whether "PLUS" or "MINUS".
5 Specify rate of interest per annum (expressed to 1/10,000th of 1%).
73
EXHIBIT E
Notice of Money Market Borrowing
--------------------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Money Market Quotes to
Anheuser-Xxxxx Companies, Inc.
Pursuant to Section 2.04 of the Credit Agreement dated as of June
30, 2000 (as amended from time to time, the "Credit Agreement"), among the
----------------
undersigned, Anheuser-Xxxxx, Incorporated, the Banks party thereto and The
Chase Manhattan Bank, as Administrative Agent, and in response to the Money
Market Quotes dated ___________ and obtained by you on our behalf, we hereby
accept the following Money Market Quote(s) on the following terms:
1. Quoting Bank: ________________________________________________________
2. Person to contact at Quoting Bank: ___________________________________
3. Date of Borrowing: ___________________________________________________
4. We hereby accept Money Market Loan(s) in the following principal
amounts, for the following Interest Periods, and at the following
rates: 1
[FN]
-----------------------------
1 Acceptance may only be made on the basis of ascending Money Market
Absolute Rates or Money Market Margins, as the case may be.
74
2
Principal Interest [Money Market [Absolute Rate 5]
Amount 2 Period 3 Margin 4] ---------------
-------- -------- --------
$
$
Terms used herein have the meanings assigned to them in the Credit
Agreement.
ANHEUSER-XXXXX COMPANIES, INC.
By _________________________________
Name:
Title:
[FN]
-----------------------------
2 Principal amount accepted for each Interest Period may not exceed
principal amount requested. Acceptances must be in the amount of $10,000,000
or a larger multiple of $1,000,000.
3 As specified in the related Money Market Quote.
4 Margin above or below (as specified) the applicable LIBO Rate,
expressed as a percentage to be added to or subtracted from such base rate.
5 Rate of interest per annum, as specified in the related Money Market
Quote.
75
EXHIBIT F
Opinion of Associate General Counsel of the Company
314/577-3298
Fax 314/000-0000
xxxxxx.xxxxxx@xxxxxxxx-xxxxx.xxx
[______], 2000
TO THE BANKS AND THE ADMINISTRATIVE AGENT
Referred to below
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Agreement dated as of June 30, 2000 among Anheuser-Xxxxx
Companies, Inc., Anheuser-Xxxxx, Incorporated, the Banks listed
therein and The Chase Manhattan Bank, as Administrative Agent
("Credit Agreement")
Ladies and Gentlemen:
I am an Associate General Counsel of Anheuser-Xxxxx Companies, Inc., a
Delaware corporation ("ABC"), and have represented ABC and Anheuser-Xxxxx,
Incorporated in connection with their execution and delivery of the Credit
Agreement. Unless otherwise indicated, terms used herein shall have the
meanings assigned to them in the Credit Agreement. This opinion letter is
limited to the laws of the State of Missouri, the laws of the State of New
York, the corporate law of the State of Delaware and the federal law of the
United States.
I have examined such documents, records and matters of law and have made
such inquiries as I have deemed necessary for purposes of this opinion
letter, and based thereupon I am of the opinion that:
(1) ABC and ABI are each corporations duly incorporated, validly
existing and in good standing under the laws of their respective
jurisdictions with the requisite corporate power and authority to conduct
their businesses as now being conducted and to execute, deliver and perform
their obligations under the Credit Agreement and the Guarantee Fee Agreement.
(2) ABC and ABI have duly authorized, executed and delivered the Credit
Agreement and the Guaranty Fee Agreement, and they constitute valid and
binding obligations of ABC and ABI, enforceable against them in accordance
with their terms, except as such enforceability may be limited by bankruptcy
and other similar laws affecting creditors' rights generally as in effect
76
Page 2
from time to time and general principles of equity (whether considered in a
proceeding in equity or at law).
(3) The execution and delivery by ABC and ABI, and the performance of
their obligations under, the Credit Agreement and the Guaranty Fee Agreement
do not conflict with their charters or bylaws, any applicable law (including
without limitation the provisions of Regulation U or X of the Board of
Governors of the Federal Reserve System) or any judgment, order, decree or
injunction known to me of any governmental body and will not constitute a
default or create any Lien on any asset of the Company or its Subsidiaries
under any indenture, mortgage or other agreement or instrument known to me to
which ABC, ABI or any of their property is bound.
(4) ABC and ABI are not required to obtain any consent or approval from,
or make any filing with, any governmental agency in connection with their
execution and delivery of, or the performance of their obligations under, the
Credit Agreement and the Guarantee Fee Agreement.
(5) There is no litigation, governmental proceeding, action, suit or
arbitration pending or, to my knowledge, threatened against ABC or any of its
Subsidiaries that would reasonably be expected to have a material adverse
effect on the validity or enforceability of the Credit Agreement or the
Guarantee Fee Agreement, the ability of ABC or ABI to perform its obligations
thereunder or upon the consolidated financial position of ABC.
(6) Neither ABC nor ABI is an "investment company" or a company
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
This opinion letter is furnished by me, as counsel for ABC and ABI, in
connection with the execution and delivery of the Credit Agreement and the
Guarantee Fee Agreement, upon the understanding that I am not otherwise
assuming any professional responsibility.
Very truly yours,
Xxxxxx Xxxxxx
Associate General Counsel
77
EXHIBIT G
[Form of Opinion of Special New York Counsel to Chase]
[______], 2000
To the Banks party to the Credit Agreement referred
to below and The Chase Manhattan Bank, as
Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase Manhattan
Bank ("Chase") in connection with the Credit Agreement (the "Credit
----- ------
Agreement") dated as of June 30, 2000, among Anheuser-Xxxxx Companies, Inc.
---------
(the "Company"), Anheuser-Xxxxx, Incorporated ("ABI"), the lenders party
------- ---
thereto and Chase, as Administrative Agent, providing for loans to be made by
said lenders to the Borrowers (as defined in the Credit Agreement) in an
aggregate principal amount at any one time outstanding not exceeding
$2,000,000,000. Terms defined in the Credit Agreement are used herein as
defined therein. This opinion letter is being delivered pursuant to Section
3.02(b) of the Credit Agreement.
In rendering the opinions expressed below, we have examined the
Credit Agreement. In our examination, we have assumed the genuineness of all
signatures, the authenticity of the original Credit Agreement and the
conformity with the original Credit Agreement of any copies thereof. When
relevant facts were not independently established, we have relied upon
representations made in or pursuant to the Credit Agreement.
In rendering the opinions expressed below, we have assumed that:
(i) the Credit Agreement has been duly authorized by, has been
duly executed and delivered by, and (except to the extent set forth in
the opinions expressed below as to the Company and ABI) constitutes
legal, valid, binding and enforceable obligations of, all of the parties
thereto;
(ii) all signatories to the Credit Agreement have been duly
authorized; and
(iii) all of the parties to the Credit Agreement are duly organized
and validly existing and have the power and authority (corporate or
other) to execute, deliver and perform the Credit Agreement.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that the Credit Agreement constitutes
the legal, valid and binding obligation of the Company and ABI, enforceable
against the Company and ABI in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or other similar laws relating to or affecting the
rights of creditors generally and except as the enforceability of the Credit
Agreement is subject to the application of general principles of equity
78
Page 2
(regardless of whether considered in a proceeding in equity or at law),
including (a) the possible unavailability of specific performance, injunctive
relief or any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 10.03 of the Credit Agreement may
be limited by (i) laws rendering unenforceable indemnification contrary
to Federal or state securities laws and the public policy underlying such
laws and (ii) laws limiting the enforceability of provisions exculpating
or exempting a party, or requiring indemnification of a party for,
liability for its own action or inaction, to the extent the action or
inaction involves gross negligence, recklessness, willful misconduct or
unlawful conduct.
(B) The enforceability of provisions in the Credit Agreement to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(C) Section 9.02 of the Credit Agreement may not be enforceable to
the extent that the obligations of the Company or any Eligible Subsidiary
under the Credit Agreement are materially modified.
(D) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Bank is located (other than the State of
New York) that limit the interest, fees or other charges such Bank may
impose, (ii) the last sentence of Section 10.04 of the Credit Agreement,
(iii) the second sentence of Section 10.08 of the Credit Agreement,
insofar as such sentence relates to the subject matter jurisdiction of
the United States District Court for the Southern District of New York to
adjudicate any controversy related to the Credit Agreement, and (iv) the
waiver of inconvenient forum set forth in the last sentence of Section
10.08 of the Credit Agreement with respect to proceedings in any Federal
Court.
(E) We express no opinion as to the applicability to the
obligations of ABI (or the enforceability of such obligations) of
Section 548 of the Bankruptcy Code, Article 10 of the New York Debtor
and Creditor Law or any other provision of law relating to fraudulent
conveyances, transfers or obligations.
(F) We point out with reference to obligations stated to be payable
in a currency other than U.S. Dollars that (i) a New York statute provides
that a judgment rendered by a court of the State of New York in respect
of an obligation denominated in any such other currency would be rendered
in such other currency and would be converted into U.S. Dollars at the
rate of exchange prevailing on the date of entry of such judgment and
(ii) a judgment rendered by a Federal court sitting in the State of
New York in respect of an obligation denominated in any such other
currency may be expressed in U.S. Dollars, but we express no opinion
as to the rate of exchange such Federal court would apply.
The foregoing opinions are limited to matters involving the Federal
laws of the United States of America and the law of the State of New York,
and we do not express any opinion as to the laws of any other jurisdiction.
79
Page 3
At the request of our client, this opinion letter is, pursuant
to Section 3.02(b) of the Credit Agreement, provided to you by us in our
capacity as special New York counsel to Chase and may not be relied upon by
any Person for any purpose other than in connection with the transactions
contemplated by the Credit Agreement without, in each instance, our prior
written consent.
Very truly yours,
WJM/WFC
80
EXHIBIT H
ANHEUSER-XXXXX COMPANIES, INC.
Calculations to Establish Compliance
For Delivery with
Financial Statements dated __________
Agreement Section Amounts as of Date
----------------- of Financial Statements
-----------------------
5.01(i) Consolidated Net Worth = $===================
and is not less than
$1,500,000,000.
81
EXHIBIT I
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of June 30, 2000 (as
amended from time to time, the "Credit Agreement"), among Anheuser-Xxxxx
----------------
Companies, Inc., Anheuser-Xxxxx, Incorporated, the Banks named therein and
The Chase Manhattan Bank, as Administrative Agent for said Banks. Terms
defined in the Credit Agreement are used herein with the same meanings.
The Assignor named below hereby sells and assigns, without recourse, to
the Assignee named below, and the Assignee hereby purchases and assumes,
without recourse, from the Assignor, effective as of the Assignment Date set
forth below, the interests set forth below (the "Assigned Interest") in the
-----------------
Assignor's rights and obligations under the Credit Agreement, including the
interests set forth below in the Commitment of the Assignor on the Assignment
Date and the Loans owing to the Assignor which are outstanding on the
Assignment Date, together with unpaid interest accrued on the assigned Loans
to the Assignment Date, and the amount, if any, set forth below of the fees
accrued to the Assignment Date for account of the Assignor. The Assignee
hereby acknowledges receipt of a copy of the Credit Agreement. From and
after the Assignment Date (i) the Assignee shall be a party to and be bound
by the provisions of the Credit Agreement and, to the extent of the interests
assigned by this Assignment and Acceptance, have the rights and obligations
of a Bank thereunder and (ii) the Assignor shall, to the extent of the
interests assigned by this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with, if the Assignee is not already a Bank under the Credit
Agreement, an Administrative Questionnaire in the form supplied by the
Administrative Agent, duly completed by the Assignee. The
[Assignee/Assignor] shall pay the fee payable to the Administrative Agent
pursuant to Section 10.06(c) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the law of the State of New York.
Assignment and Acceptance
-------------------------
82
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
---------------
Principal Amount
Assigned (and identifying
information as to individual
Negotiated Rate Loans and Money
Market Loans)
------------
Commitment Assigned: $
Syndicated Loans:
Negotiated Rate Loans:
Money Market Loans:
Fees Assigned (if any):
83
The terms set forth above and below are hereby agreed to:
[NAME OF ASSIGNOR] , as Assignor
------------------
By:_________________________
Name:
Title:
[NAME OF ASSIGNEE] , as Assignee
------------------
By:_________________________
Name:
Title:
The undersigned hereby consent to the within assignment: 1
ANHEUSER-XXXXX COMPANIES, INC.
By:_________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:_________________________
Name:
Title:
[FN]
-----------------------------
1 Consents to be included to the extent required by Section 10.06(c) of
the Credit Agreement.
84
EXHIBIT J
Guaranty Fee Agreement
----------------------
Anheuser-Xxxxx Companies, Inc. ("ABC"), a Delaware corporation, and
---
Anheuser-Xxxxx, Incorporated ("ABI"), a Missouri corporation which is a
---
wholly-owned subsidiary of ABC, are entering into this Guaranty Fee Agreement
in connection with the execution and delivery of the Credit Agreement dated
as of June 30, 2000 (as amended from time to time, the "Credit Agreement"),
----------------
among ABC, ABI, the Banks listed therein and The Chase Manhattan Bank, as
Administrative Agent.
In consideration of the anticipated benefits, direct and indirect, to ABI
as a result of the Loans to be made from time to time as provided in the
Credit Agreement, and in further consideration of the payment of the fee
hereinafter referred to, ABI is willing to become liable, as guarantor, in
respect of the Loans and the other obligations of ABC under the Credit
Agreement, including without limitation, ABC's guarantee under the Credit
Agreement of the Loans to Eligible Subsidiaries (as defined in the Credit
Agreement).
ABC has provided to ABI copies of the financial statements referred to in
Section 4.01(d) of the Credit Agreement. ABC confirms, for the benefit of
ABI, the representations set forth in Section 4.01 of the Credit Agreement.
Accordingly, ABI hereby agrees that it will execute and deliver the
Credit Agreement, and that the Credit Agreement shall be the binding
obligation of ABI, as guarantor, in accordance with its terms.
ABC agrees to pay to ABI, annually in arrears, a fee in consideration for
such guaranty, such fee to be equal to 1/10 of 1% per annum (calculated on
the basis of a 365 or 366 day year and actual days elapsed) of the average
outstanding principal amount of the Loans during such year. Such amounts
shall be calculated and paid prior to April 1 of each year in respect of the
preceding calendar year. Any failure by ABI to request such payment, or any
failure by ABC to make such payment, shall in no way limit or impair the
obligation of ABI in respect of the Credit Agreement.
To confirm their agreement as set forth above, ABC and ABI have executed
and delivered this Agreement as of June [__], 2000. This Agreement shall be
governed by and construed in accordance with the law of the State of New
York.
ANHEUSER-XXXXX, INCORPORATED ANHEUSER-XXXXX COMPANIES, INC.
By: ________________________________ By: ______________________________
Name: Name:
Title: Title:
85
EXHIBIT K
FORM OF ELECTION TO PARTICIPATE
-------------------------------
[Date]
THE CHASE MANHATTAN BANK,
as Administrative Agent
for the Banks named in the Credit Agreement
dated as of June 30, 2000 (as amended from
time to time, the "Credit Agreement") among
----------------
Anheuser-Xxxxx Companies, Inc., Anheuser-Xxxxx,
Incorporated, such Banks and such Administrative Agent
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement have for the
purposes hereof the meanings provided therein.
The undersigned, [name of Eligible Subsidiary], a [jurisdiction of
incorporation] corporation, elects to be an Eligible Subsidiary for purposes
of the Credit Agreement, effective from the date hereof until an Election to
Terminate shall have been delivered on behalf of the undersigned in
accordance with the Credit Agreement. The undersigned confirms that the
representations and warranties set forth in Section 4.02 of the Credit
Agreement are true and correct as to the undersigned as of the date hereof,
and the undersigned agrees to perform all the obligations of an Eligible
Subsidiary under, and to be bound in all respects by the terms of, the Credit
Agreement, as if the undersigned were a signatory party thereto. The
undersigned further acknowledges and agrees that the Company will act as
exclusive agent of and attorney-in-fact for the undersigned for all purposes
of the Credit Agreement, and in such capacity as agent the Company will have
the exclusive authority to provide notices under the Credit Agreement with
respect to any loans to be made to the undersigned. The undersigned shall be
bound by all agreements and actions entered into or taken by the Company
under or pursuant to the Credit Agreement. The appointment by the
undersigned of the Company to act as its agent and attorney-in-fact is
irrevocable, and the undersigned agrees to assume all risk of keeping itself
informed of the actions of the Company under the Credit Agreement, with the
understanding that the Administrative Agent and the Banks will be relying on
the foregoing in advancing Loans under the Credit Agreement.
86
This instrument shall be construed in accordance with and governed by the
law of the State of New York.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By _____________________________
Name:
Title:
The undersigned confirms that [name of Eligible Subsidiary] is an
Eligible Subsidiary for purposes of the Credit Agreement described above.
ANHEUSER-XXXXX COMPANIES, INC.
By _____________________________
Name:
Title:
Receipt of the above Election to Participate is acknowledged on and as of
the date set forth above.
THE CHASE MANHATTAN BANK,
as Administrative Agent
By _____________________________
Name:
Title:
87
EXHIBIT L
FORM OF ELECTION TO TERMINATE
-----------------------------
[Date]
THE CHASE MANHATTAN BANK,
as Administrative Agent
for the Banks named in the Credit Agreement
dated as of June 30, 2000 (as amended from
time to time, the "Credit Agreement") among
----------------
Anheuser-Xxxxx Companies, Inc., Anheuser-Xxxxx,
Incorporated, such Banks and such Administrative Agent
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement have for the
purposes hereof the meanings provided therein.
The undersigned, Anheuser-Xxxxx Companies, Inc., a Delaware corporation,
elects to terminate the status of [name of Eligible Subsidiary], a
[jurisdiction of incorporation] corporation (the "Designated Subsidiary"), as
---------------------
an Eligible Subsidiary for purposes of the Credit Agreement, effective as of
the date hereof. The undersigned represents and warrants that all principal
and interest on the Loans to the Designated Subsidiary and all other amounts
payable by such Designated Subsidiary pursuant to the Credit Agreement have
been paid in full on or prior to the date hereof. Notwithstanding the
foregoing, this Election to Terminate shall not affect any obligation of the
Designated Subsidiary under the Credit Agreement heretofore incurred.
This instrument shall be construed in accordance with and governed by the
law of the State of New York.
Very truly yours,
ANHEUSER-XXXXX COMPANIES, INC.
By _____________________________
Name:
Title:
88
Receipt of the above Election to Terminate is hereby acknowledged on and
as of the date set forth above.
THE CHASE MANHATTAN BANK,
as Administrative Agent
By _____________________________
Name:
Title:
89
SCHEDULE 4.01(k)
UNRESTRICTED SUBSIDIARIES
Anheuser-Xxxxx Asia, Inc.
Anheuser-Xxxxx Australia Limited
Anheuser-Xxxxx Brasil Holdings Ltda.
Anheuser-Xxxxx Distributors of New York, Inc.
Anheuser-Xxxxx Entertainment Limited
Anheuser-Xxxxx Europe Limited
Anheuser-Xxxxx Europe, Inc.
Anheuser-Xxxxx Florida Investment Capital Corporation
Anheuser-Xxxxx Import Investments, Inc.
Anheuser-Xxxxx International Holdings, Inc.
Anheuser-Xxxxx International, Inc.
Anheuser-Xxxxx Investments, S.L.
Anheuser-Xxxxx Latin American Development Corporation
Anheuser-Xxxxx Mexico, Inc.
Anheuser-Xxxxx River North Investment Capital Corporation
Anheuser-Xxxxx Sales of Hawaii, Inc.
Anheuser-Xxxxx Sales of South Bay, Inc.
Anheuser-Xxxxx Spanish Holdings, Inc.
Anheuser-Xxxxx Wholesaler Development Corp.
Anheuser-Xxxxx Wholesaler Development Corporation III
Anheuser-Xxxxx Wholesaler Development Corporation IV
Anheuser-Xxxxx Wisconsin Investment Capital Corporation
Anheuser-Xxxxx World Trade Ltd.
August X. Xxxxx & Co. of Massachusetts, Inc.
BACI Holdings, Inc.
BACI, Inc.
BACI of Delaware, Inc.
Xxxxxx Corporation
BARI-Canada, Inc.
Bevo Music, Inc.
Boardwalk and Baseball, Inc.
Bow Tie Music, Inc.
Budweiser Brasil Ltda.
Budweiser Japan Company, Ltd.
Budweiser Philippines, Inc.
Budweiser Wuhan International Brewing Company Limited
Busch Agricultural Resources International, Inc.
Xxxxx Biotech, Inc.
Xxxxx Creative Services Corporation
Busch Entertainment Corporation
Busch Foreign Sales Corporation
Busch International Sales Corporation
Busch Investment Corporation
Busch Mechanical Services, Inc.
90
Busch Media Group, Inc.
Xxxxx Properties of Florida, Inc.
Xxxxx Properties, Inc.
Capitol Beverage Sales Limited Partnership
Circle City Eagle Limited Partnership
City Beverages Limited Partnership
Civic Center Corporation
Coleridge Corporation
Consolidated Farms, Inc.
Daytona Beverages Limited Partnership
Eagle Brands of Houston Limited Partnership
Eagle Brands of South Texas Limited Partnership
Eagle I Limited Partnership
Eagle Midwest Limited Partnership
Eagle Snacks, Inc.
Eastern Shore Distributing Limited Partnership
Fairfield Transport, Inc.
Xxxxxxx Holding Co.
Xxxxxxx Leasing Company
Glass Container Corporation
Gold Coast Eagle Distributing Limited Partnership
HSH Of Orlando, Inc.
ILH Company
InnoVen IV Corporation
Kaasi Enterprises, L.L.C.
Kingsmill Realty, Inc.
Krajinska Investicni, spol. s x.x.
Xxxxxxxxxx Development Corporation
M.R.S. Redevelopment Corporation
M.R.S. Transport Company
Manufacturers Cartage Company
Manufacturers Railway Company
Metal Label Corporation
Nutri-Turf, Inc.
Packaging Business Services, Inc.
PBP, Inc.
Pestalozzi Street Insurance Company, Ltd.
PSB, Inc.
Puget Sound Beverages, Inc.
Screaming Eagle Limited Partnership
Sea World of Florida, Inc.
Sea World of Texas, Inc.
Sea World, Inc.
SFKBPP, Inc.
Somerset Distributors, LLC
Southern Eagle Sales and Service, L.P.
St. Louis Refrigerator Car Company
Stag Brewing Company Limited
Tune Out Music, Inc.
91
Twin City Distributors Limited Partnership
VacationLand Snacks Limited Partnership
Wholesaler Equity Development Corporation
Williamsburg Transport, Inc.
Wisconsin Distributors Limited Partnership
92
SCHEDULE 5.01(b)
Permitted Liens
---------------
NONE
