<PAGE>
Exhibit 4.5
===============================================================================
EXECUTION COPY
$2,000,000,000
CREDIT AGREEMENT
Dated as of August 4, 2003
among
ANHEUSER-BUSCH COMPANIES, INC.
The Banks Listed Herein
and
JPMORGAN CHASE BANK,
as Administrative Agent
------------------------
J.P.
MORGAN SECURITIES INC.,
BANC ONE CAPITAL MARKETS, INC.
as Lead Arrangers and Joint Bookrunners
BANK ONE, NA,
as Syndication Agent
BANK
OF AMERICA, N.A., CITIBANK N.A. AND UBS AG
as Documentation Agents
===============================================================================
<PAGE>
<TABLE>
TABLE OF CONTENTS*
<CAPTION>
Page
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<S>
<C>
ARTICLE I
DEFINITIONS............................................................................................1
Section 1.01.
Definitions...............................................................................1
-----------
Section 1.02.
Accounting Terms and
Determinations......................................................13
-----------------------------------
Section 1.03. Terms
Generally..........................................................................14
---------------
ARTICLE II THE
CREDITS..........................................................................................14
Section 2.01. The
Commitments..........................................................................14
---------------
Section 2.02. The
Syndicated
Loans.....................................................................14
--------------------
Section 2.03.
Syndicated
Borrowings....................................................................14
---------------------
Section 2.04. Money
Market
Borrowings..................................................................16
-----------------------
Section 2.05.
Swingline
Borrowings.....................................................................21
--------------------
Section 2.06. Letters
of
Credit........................................................................22
-----------------
Section 2.07.
Negotiated Rate
Loans....................................................................26
---------------------
Section 2.08. Evidence
of
Debt.........................................................................27
----------------
Section 2.09. Maturity
of
Loans........................................................................27
-----------------
Section 2.10. Interest
Rates...........................................................................28
--------------
Section 2.11.
Fees.....................................................................................31
----
Section 2.12.
Termination and Reduction of
Commitments.................................................31
----------------------------------------
Section 2.13. Optional
Prepayments.....................................................................32
--------------------
Section 2.14. General
Provisions as to
Payments........................................................32
---------------------------------
Section 2.15. Funding
Losses...........................................................................33
--------------
Section 2.16.
Computation of Interest and
Fees.........................................................34
--------------------------------
Section 2.17.
Taxes....................................................................................34
-----
Section 2.18. Pricing
Periods..........................................................................36
---------------
Section 2.19. Eligible
Subsidiaries....................................................................36
---------------------
ARTICLE III CONDITIONS TO
BORROWINGS............................................................................37
Section 3.01. (a)
Syndicated
Borrowings...............................................................37
---------------------
(b) Money Market
Borrowings.............................................................37
-----------------------
(c) Swingline
Borrowings................................................................38
--------------------
(d) Letter of Credit
Issuance, Amendment, Renewal or
Extension..........................38
----------------------------------------------------------
Section 3.02.
Effectiveness............................................................................39
-------------
Section
3.03. Negotiated Rate
Borrowings...............................................................40
--------------------------
ARTICLE IV REPRESENTATIONS AND
WARRANTIES.......................................................................40
Section 4.01.
Representations and Warranties of the
Company............................................40
---------------------------------------------
(a) Corporate
Existence and
Power.......................................................40
-----------------------------
(b) Corporate and
Governmental Authorization;
Contravention.............................40
-------------------------------------------------------
(c) Binding
Effect......................................................................41
--------------
<FN>
--------------
*
This Table of Contents is not part of this Agreement.
i
<PAGE>
(d) Financial
Information...............................................................41
---------------------
(e)
Litigation..........................................................................41
----------
(f)
ERISA...............................................................................41
-----
(g) Tax Returns and
Payment.............................................................42
-----------------------
(h) Ownership of ABI
Voting
Interests...................................................42
---------------------------------
(i) Not an Investment
Company...........................................................42
-------------------------
(j) Regulations U and
X.................................................................42
-------------------
(k) Unrestricted
Subsidiaries...........................................................42
-------------------------
(l) Environmental
Matters...............................................................42
---------------------
Section 4.02.
Representations and Warranties of the Eligible
Subsidiaries..............................43
-----------------------------------------------------------
(a) Corporate
Existence and
Power.......................................................43
-----------------------------
(b) Corporate and
Governmental Authorization;
Contravention.............................43
-------------------------------------------------------
(c) Binding
Effect......................................................................43
--------------
(d) Not an Investment
Company...........................................................43
-------------------------
(e) Regulations U and
X.................................................................43
-------------------
ARTICLE V
COVENANTS.............................................................................................44
Section 5.01.
Covenants of the
Company.................................................................44
------------------------
(a)
Information.........................................................................44
-----------
(b) Limitations on
Liens................................................................45
--------------------
(c) Consolidation,
Merger or Disposition of
Assets......................................46
----------------------------------------------
(d) Change in Nature
of
Business........................................................46
----------------------------
(e) Disposition of
Assets...............................................................46
---------------------
(f) Additional Permitted Secured
Indebtedness...........................................47
-----------------------------------------
(g) Sale and
Leaseback..................................................................47
------------------
(h) Ownership of
Voting Interests of
ABI................................................47
------------------------------------
(i)
Consultation........................................................................48
------------
(j) Payment of Taxes;
Corporate Existence; Maintenance of Properties;
Insurance.........48
---------------------------------------------------------------------------
(k) Pari Passu
Obligations..............................................................48
----------------------
(l)
ERISA...............................................................................49
-----
(m) Compliance with
Laws................................................................49
--------------------
Section 5.02. Use of
Proceeds..........................................................................49
---------------
ARTICLE VI
DEFAULTS.............................................................................................49
Section 6.01. Events
of
Default........................................................................49
-----------------
Section 6.02. Remedies
Upon
Default....................................................................51
---------------------
Section 6.03. Notice
of
Default........................................................................52
-----------------
ARTICLE VII THE ADMINISTRATIVE
AGENT............................................................................52
Section 7.01.
Appointment and
Authorization............................................................52
-----------------------------
Section 7.02.
Administrative Agent and
Affiliates......................................................52
-----------------------------------
Section 7.03. Action
by Administrative
Agent...........................................................52
------------------------------
Section 7.04.
Consultation with
Experts................................................................52
-------------------------
Section 7.05.
Liability of Administrative
Agent........................................................52
---------------------------------
Section 7.06.
Indemnification..........................................................................53
---------------
ii
<PAGE>
Section 7.07. Credit
Decision..........................................................................53
---------------
Section 7.08.
Resignation of Administrative
Agent......................................................53
-----------------------------------
Section 7.09. Lead
Arrangers, Bookrunners, Syndication Agent and Documentation
Agents..................54
-----------------------------------------------------------------------
ARTICLE VIII CHANGE IN
CIRCUMSTANCES............................................................................54
Section 8.01. Basis
for Determining Interest Rate Inadequate or
Unfair.................................54
--------------------------------------------------------
Section 8.02.
Illegality...............................................................................55
----------
Section 8.03.
Increased
Cost...........................................................................55
--------------
Section 8.04. Base
Rate Loans Substituted for Affected Fixed Rate
Loans................................58
---------------------------------------------------------
Section 8.05.
Substitution of
Bank.....................................................................58
--------------------
ARTICLE IX
GUARANTEE............................................................................................58
Section 9.01. The
Guarantee............................................................................58
-------------
Section 9.02.
Guarantee
Unconditional..................................................................58
-----------------------
Section 9.03.
Discharge Only Upon Payment in Full Reinstatement in Certain
Circumstances...............59
--------------------------------------------------------------------------
Section 9.04. Waiver
by the
Company....................................................................59
---------------------
Section 9.05.
Subrogation..............................................................................59
-----------
Section 9.06. Stay of
Acceleration.....................................................................60
--------------------
ARTICLE X
MISCELLANEOUS.........................................................................................60
Section 10.01.
Notices.................................................................................60
-------
Section 10.02. No
Waivers..............................................................................60
----------
Section 10.03.
Expenses; Documentary Taxes;
Indemnity..................................................60
--------------------------------------
Section 10.04. Sharing
of
Setoffs......................................................................61
------------------
Section 10.05.
Amendments and
Waivers..................................................................62
----------------------
Section 10.06.
Successors and
Assigns..................................................................62
----------------------
Section 10.07.
Collateral..............................................................................65
----------
Section 10.08. New
York Law; Submission to
Jurisdiction................................................65
----------------------------------------
Section 10.09.
Counterparts;
Effectiveness.............................................................66
---------------------------
Section 10.10.
Independence of
Covenants...............................................................66
-------------------------
Section 10.11. WAIVER
OF JURY
TRIAL....................................................................66
--------------------
Section 10.12. Waiver
Under Pre-Existing Credit
Agreements.............................................66
-------------------------------------------
Section 10.13. Action
by the Company on Behalf of the
Borrowers........................................66
------------------------------------------------
Section 10.14.
Survival................................................................................66
--------
Section 10.15.
Permitted Disclosure of Certain Tax Related
Matters.....................................67
---------------------------------------------------
iii
<PAGE>
EXHIBIT A Note
EXHIBIT B Form of Money Market Quote
Request
EXHIBIT C Form of Invitation for Money
Market Quotes
EXHIBIT D Form of Money Market Quote
EXHIBIT E Notice of Money Market
Borrowing
EXHIBIT F Opinion of Thomas Larson, Esq.,
Associate General Counsel of the Company
EXHIBIT G Opinion of Milbank, Tweed, Hadley
& McCloy LLP, Special New York Counsel
to JPMorgan Chase
EXHIBIT H Assignment and Acceptance
EXHIBIT I Form of Election to
Participate
EXHIBIT J Form of Election to Terminate
Schedule I
Commitments
Schedule 4.01(k) Unrestricted Subsidiaries
Schedule 5.01(b) Permitted Liens
</TABLE>
iv
<PAGE>
CREDIT AGREEMENT dated as of
August 4, 2003, among ANHEUSER-BUSCH
COMPANIES, INC., a Delaware corporation,
the BANKS listed on the signature pages
hereof and JPMORGAN CHASE BANK as
Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01.
Definitions. The
following terms, as used
-----------
herein, have the following meanings:
"ABI" means Anheuser-Busch, Incorporated, a Missouri
---
corporation, and its successors and
permitted assigns.
"Absolute Rate Auction" means a solicitation of Money
---------------------
Market Quotes setting forth Money Market
Absolute Rates pursuant to Section
2.04.
"Additional Margin" means 0.075%.
-----------------
"Adjusted CD Rate" has the meaning set forth in Section
----------------
2.10(b).
"Adjusted LIBO Rate" has the meaning set forth in Section
------------------
2.10(c).
"Administrative Agent" means JPMorgan Chase Bank in its
--------------------
capacity as agent for the Banks hereunder
and its successors in such
capacity.
"Administrative Questionnaire" means, with respect to each
----------------------------
Bank, an 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, 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
---------------
2.10(b).
"Bank" means a financial institution listed on the
----
signature pages hereof as having a
Commitment or a financial institution
added pursuant to Section 8.05, and its
successors and permitted assigns;
and "Banks" means all of such institutions.
Unless the context otherwise
-----
requires, the term "Banks" includes the
Swingline Banks.
<PAGE>
"Bank Affiliate" means, with respect to any Bank, (i) an
--------------
Affiliate 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.
"Bank One" means Bank One, NA.
--------
"Base Rate" means, for any day, a rate per annum equal to
---------
the higher 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 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 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 Company or any duly authorized
committee of that board.
"Board Resolution" means a copy of a resolution certified
----------------
by the 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 context may require, and their
respective successors and permitted
assigns.
"Borrowing" means a borrowing hereunder consisting of
---------
Loans made to 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 are Domestic Loans or a
"Euro-Dollar Borrowing" if such Loans
---------------------
are Euro-Dollar Loans. A Domestic Borrowing
is a "CD Borrowing" if such
------------
Domestic Loans are CD Loans or a "Base Rate
Borrowing" if such Domestic
-------------------
Loans are Base Rate Loans. A Borrowing is a
"Syndicated Borrowing" if such
--------------------
Loans are Syndicated Loans. A Borrowing is
a "Money Market Borrowing" if
----------------------
such Loans are Money Market Loans. A
Borrowing is a "Negotiated Rate
---------------
Borrowing" if such Loans are Negotiated
Rate Loans. A Borrowing is a
---------
"Swingline Borrowing" if such Loans are
Swingline Loans.
-------------------
"CD Base Rate" has the meaning set forth in Section
------------
2.10(b).
"CD Loan" means a Syndicated Loan to be made as a CD Loan
-------
pursuant to Section 2.03 and the applicable
Notice of Borrowing.
"CD Margin" has the meaning set forth in Section 2.10(b).
---------
2
<PAGE>
"CD Reserve Percentage" has the meaning set forth in
---------------------
Section 2.10(b).
"Code" means the Internal Revenue Code of 1986, as
----
amended.
"Commitment" means, with respect to each Bank, the amount
----------
set forth opposite the name of such Bank on
Schedule I hereto, as such
amount may from time to time be reduced
pursuant to Section 2.12 or
increased or reduced pursuant to
assignments under Section 10.06.
"Commitment Utilization Day" means any day on which the
--------------------------
sum of the aggregate outstanding principal
amount of all Loans plus the
----
aggregate LC Exposure exceeds 50% of the
Total Commitment.
"Company" means Anheuser-Busch Companies, Inc., a Delaware
-------
corporation, and its successors and
permitted assigns.
"Company's 2002 Form 10-K" means the Company's annual
------------------------
report on Form 10-K for 2002, as filed with
the Securities and Exchange
Commission pursuant to the Securities
Exchange Act of 1934, as amended.
"Consolidated Subsidiary" means, with respect to any
-----------------------
Person at any 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.
"Continuing Directors" means, at any date, the Persons who
--------------------
served 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 extent obligations of
such type are required to be set
forth as liabilities in such Person's
financial 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, 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 Default or which with the
giving of notice or passing of time or
both would, unless cured or waived, become
an Event of Default.
3
<PAGE>
"Domestic Business Day" means any day, except a Saturday,
---------------------
Sunday or 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 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 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 Loans" means CD Loans or Base
Rate Loans or both.
--------------
"Domestic Subsidiary" means a Subsidiary whose principal
-------------------
place of business is located within the
United States.
"Effective Date" means the date (which shall not be later
--------------
than 5 Domestic Business Days after the
date of this Agreement) on which
this Agreement shall become effective in
accordance with Sections 3.02 and
10.09.
"Election to Participate" means an election to participate
-----------------------
substantially in the form of Exhibit I
hereto.
"Election to Terminate" means an election to terminate
---------------------
substantially in the form of Exhibit J
hereto.
"Eligible Subsidiary" means any Subsidiary of the Company
-------------------
that is a wholly-owned Consolidated
Subsidiary of the Company and as to
which an Election to Participate shall 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 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, as amended, or any successor
statute.
4
<PAGE>
"ERISA Group" means the Company and all members of a
-----------
controlled 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 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 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
----------------
Euro-Dollar Loan pursuant to Section 2.03
and the applicable Notice of
Borrowing.
"Euro-Dollar Margin" has the meaning set forth in Section
------------------
2.10(c).
"Event of Default" has the meaning set forth in Section
----------------
6.01.
"Executive Officer" means the Chief Executive Officer, the
-----------------
President, the Chief Financial Officer or
the Treasurer of the Company.
"Federal Funds Rate" means, for any day, the rate per
------------------
annum (rounded 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 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 Board of Directors.
"Fixed Rate Borrowing" means a Borrowing consisting of
--------------------
Fixed Rate Loans.
"Fixed Rate Loans" means CD Loans, Euro-Dollar Loans,
----------------
Money Market 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.
5
<PAGE>
"Funded Debt" means, as of any date, without duplication,
-----------
all 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 debt" 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 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 collection or deposit in the ordinary
course of business. The term
"Guarantee" used as a verb has a
correlative meaning.
---------
"Indebtedness" of any Person means any indebtedness of
------------
such Person representing money
borrowed.
"Index Debt" means senior, unsecured, long-term
----------
Indebtedness of the Company that is not
supported by any letter of credit,
guarantee or other credit enhancement.
"Interest Period" means:
---------------
(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:
--------
(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) no Interest Period may end after the Termination Date;
provided further, however, that if any such
Interest Period would be less
-------- ------- -------
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:
--------
(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
6
<PAGE>
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) no Interest Period may end after the Termination Date;
provided further, however, that if any such
Interest Period would be less
-------- ------- -------
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:
--------
(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) no Interest Period may end after 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:
--------
(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;
(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; and
7
<PAGE>
(6) with respect to each Swingline Loan, the period
commencing on the date of such Loan and
ending not less than one day and not
more than 5 Domestic Business Days
thereafter, as the Company may elect in
the applicable Notice of Borrowing;
provided that:
--------
(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.
"Invitation" has the meaning set forth in Section 2.04(c).
----------
"Issuing Bank" means each of JPMorgan Chase and Bank One,
------------
in its capacity as an issuer of Letters of
Credit hereunder, and any
additional Bank that becomes an Issuing
Bank pursuant to Section 2.06(j),
but excluding any Bank that has ceased to
be an Issuing Bank pursuant to
Section 2.06(j).
"JPMorgan Chase" means JPMorgan Chase Bank.
--------------
"LC Disbursement" means a payment made by an Issuing Bank
---------------
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (i) the
-----------
aggregate undrawn amount of all outstanding
Letters of Credit at such time
plus (ii) the aggregate amount of all LC
Disbursements that have not yet
----
been reimbursed by or on behalf of the
applicable Borrower at such time. The
LC Exposure of any Bank at any time shall
be its Pro Rata Percentage of the
total LC Exposure at such time.
"Lending Office" means, as to any Bank, its Domestic
--------------
Lending Office, its Euro-Dollar Lending
Office or its Money Market Lending
Office, as the context may require.
"Letter of Credit" means any letter of credit issued
----------------
pursuant to this Agreement in a form
satisfactory to the Administrative
Agent in its reasonable judgment.
"Letter of Credit Documents" means, with respect to any
--------------------------
Letter of Credit, collectively, any
application therefor and any other
agreements, instruments, guarantees or
other documents (whether general in
application or applicable only to such
Letter of Credit) governing or
providing for (i) the rights and
obligations of the parties concerned or at
risk with respect to such Letter of Credit
or (ii) any collateral security
for any of such obligations, each as the
same may be modified and
supplemented and in effect from time to
time.
"Level I Pricing Period" has the meaning set forth in
----------------------
Section 2.18.
"Level II Pricing Period" has the meaning set forth in
-----------------------
Section 2.18.
"LIBO Rate" has
the meaning set forth in Section 2.10(c).
---------
8
<PAGE>
"LIBOR Auction" means a solicitation of Money Market
-------------
Quotes setting 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, 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 Loan, a Money Market Loan
or a Swingline Loan, and "Loans"
-----
means Domestic Loans, Euro-Dollar Loans,
Negotiated Rate Loans, Money Market
Loans, Swingline Loans or any of the
foregoing.
"Material Plan" means a Plan having aggregate Unfunded
-------------
Liabilities in excess of $200,000,000.
"Maturity Date" in respect of each Loan, has the meaning
-------------
set forth in Section 2.09.
"Money Market Absolute Rate" has the meaning set forth in
--------------------------
Section 2.04(d).
"Money Market Absolute Rate Loan" means a Loan made
-------------------------------
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its
---------------------------
Domestic 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 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 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 Money Market LIBOR Loan.
"Money Market Margin" has the meaning set forth in Section
-------------------
2.04(d).
"Money Market Quote" means an offer by a Bank to make a
------------------
Money Market Loan in accordance with
Section 2.04.
"Moody's" means Moody's Investors Service and its
-------
successors.
9
<PAGE>
"Multiemployer Plan" means an employee pension benefit
------------------
plan subject 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 which is identified (by notice
from the Bank or the Company to the
Administrative Agent) as a Loan made
pursuant to Section 2.07.
"Net Tangible Assets" means total assets of the Company
-------------------
and its 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, 2003 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
Subsidiaries delivered to the
Banks pursuant to Section 5.01(a)(i) or
(ii); provided that any items
--------
constituting deferred income taxes,
deferred 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
------------------
2.17.
"Note" means a promissory note of a Borrower,
----
substantially in the form of Exhibit A
hereto, evidencing the obligation of
such Borrower to repay its Loans, and
"Notes" means all such promissory
-----
notes issued hereunder.
"Notice of Borrowing" means a Notice of Syndicated
-------------------
Borrowing as defined in Section 2.03(a), a
Notice of Money Market Borrowing
as defined in Section 2.04(f) or a Notice
of Swingline Borrowing as defined
in Section 2.05(b).
"Packaging Business" means the assets identified as the
------------------
"Packaging 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 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 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.
10
<PAGE>
"PBGC" means the Pension Benefit Guaranty Corporation or
----
any entity succeeding to any or all of its
functions under ERISA.
"Person" means an individual, sole proprietorship,
------
corporation, 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 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
--------------
2.18.
"Prime Rate" means the rate of interest per annum publicly
----------
announced from time 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, 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
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 obtained by dividing the
Commitment of such Bank by the Total
Commitment or, if the Commitments shall
have been terminated, by dividing
the sum of the aggregate unpaid principal
amount of such Bank's Loans plus
----
such Bank's LC Exposure by the aggregate
unpaid principal amount of the
Loans plus the total LC Exposure.
----
11
<PAGE>
"Reference Banks" means JPMorgan Chase, Bank One and such
---------------
other banks as may be appointed pursuant to
Section 10.06(d).
"Refunding Borrowing" means a Borrowing which, after
-------------------
application of the proceeds thereof,
results in no net increase in the
outstanding principal amount of the Loans
made by any Bank.
"Related Parties" means, with respect to any specified
---------------
Person, such Person's Affiliates and the
respective directors, officers,
employees, agents and advisors of such
Person and such Person's Affiliates.
"Required Banks" means at any time Banks holding more than
--------------
50% of the Total Commitment or, if the
Commitments shall have been
terminated, holding more than 50% of the
sum of the aggregate unpaid
principal amount of the Loans plus the
total LC Exposure.
----
"Restricted Subsidiary" means (i) any Subsidiary of 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
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 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.
"Subsidiary" means, with respect to any Person, any
----------
corporation, limited liability company,
partnership, association or other
entity of which more than 50% of the issued
and outstanding Voting Interests
or, in the case of a partnership, more than
50% of the general partnership
interests, is at the time directly or
indirectly owned by such Person or one
or more of such Person's Subsidiaries or by
such Person and one or more of
such Person's Subsidiaries.
"Swingline Bank" means each of JPMorgan Chase and Bank
--------------
One, in its capacity as lender of Swingline
Loans hereunder.
"Swingline Exposure" means, at any time, the aggregate
------------------
principal amount of all Swingline Loans
outstanding at such time. The
Swingline Exposure of any Bank at any time
shall be its Pro Rata Percentage
of the total Swingline Exposure at such
time.
12
<PAGE>
"Swingline Loan" means a Loan made pursuant to Section
--------------
2.05.
"Syndicated Loan" means a Base Rate Loan, a CD Loan or a
---------------
Euro-Dollar Loan, as the case may be, but
excluding a Swingline Loan.
"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 August 4, 2008.
----------------
"Total Commitment" means, at any date, the aggregate
----------------
Commitments of all the Banks as of such
date.
"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.
"United States" means the United States of America.
-------------
"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 Interest" means equity interests in any entity of
---------------
any class or classes (however designated)
having ordinary voting power for
the election of a majority of the governing
body of such entity (other than
equity interests 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 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.
13
<PAGE>
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 the sum of (a) such Bank's LC Exposure
at such time plus (b) such
----
Bank's Swingline Exposure at such time plus
(c) such Bank's Pro Rata
----
Percentage of the sum of the aggregate
principal amount of Negotiated Rate
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 2.13, 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
14
<PAGE>
(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 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 2.14) 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.
15
<PAGE>
(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 2.14, 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 2.10
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 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:
16
<PAGE>
(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
(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 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.
17
<PAGE>
(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);
(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
18
<PAGE>
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,
(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.
19
<PAGE>
(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 2.14, 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
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
2.10 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.
20
<PAGE>
Section 2.05. Swingline Borrowings. (a) During the
--------------------
Revolving Credit Period, each Swingline
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 Swingline
Loans in U.S. Dollars; provided that (i)
the aggregate principal amount of
--------
such Swingline Loans at any one time
outstanding shall not exceed the lesser
of (x) $300,000,000 and (y) the Total
Commitment at such time less the sum
of the aggregate principal amount of Loans
outstanding at such time plus the
----
total LC Exposure at such time; provided
that no Swingline Bank shall be
--------
required to make a Swingline Loan to
refinance an outstanding Swingline
Loan. Within the foregoing limits, the
Borrowers may borrow under this
Section, repay, and, to the extent
permitted under Section 2.13, prepay and
reborrow under this Section at any time
during the Revolving Credit Period.
(b) The Company shall give notice (a "Notice of Swingline
-------------------
Borrowing") to the Administrative Agent not
later than 2:00 P.M. (New York
---------
City time) on the proposed date of each
proposed Swingline Borrowing. Each
Notice of Swingline Borrowing shall
specify:
(i) the date of such Borrowing, which shall be a Domestic
Business Day,
(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) the duration of the Interest Period applicable to
such Borrowing, subject to the provisions of the definition of
Interest Period,
and
(iv) if the Borrower of such Borrowing is not the Company,
the name of the Eligible Subsidiary that will be the Borrower
of
such Borrowing.
(c) Participations by Banks in Swingline Loans. Each
------------------------------------------
Swingline Bank may by written notice given
to the Administrative Agent not
later than 10:00 A.M. (New York City time),
on any Domestic Business Day
require the Banks to acquire participations
on such Business Day in all or a
portion of the Swingline Loans outstanding.
Such notice to the
Administrative Agent shall specify the
aggregate amount of Swingline Loans
in which the Banks will participate.
Promptly upon receipt of such notice,
the Administrative Agent will give notice
thereof to each Bank, specifying
in such notice such Bank's Pro Rata
Percentage of such Swingline Loan or
Loans. Each Bank hereby absolutely and
unconditionally agrees, upon receipt
of notice as provided above in this
paragraph, to pay to the Administrative
Agent, for account of such Swingline Bank,
such Bank's Pro Rata Percentage
of such Swingline Loan or Loans. Each Bank
acknowledges and agrees that its
obligation to acquire participations in
Swingline Loans pursuant to this
paragraph is absolute and unconditional and
shall not be affected by any
circumstance whatsoever, including the
occurrence and continuance of a
Default or reduction or termination of the
Commitments, and that each such
payment shall be made without any offset,
abatement, withholding or
reduction whatsoever. Each Bank shall
comply with its obligation under this
paragraph by wire transfer of immediately
available funds, in the same
manner as provided in Section 2.03(d) with
respect to Syndicated Loans made
by such Bank (and Section 2.03(d) shall
apply, mutatis mutandis, to the
------- --------
payment obligations of the
21
<PAGE>
Banks), and the Administrative Agent shall
promptly pay to such Swingline
Bank the amounts so received by it from the
Banks. The Administrative Agent
shall notify the Company of any
participations in any Swingline Loan
acquired pursuant to this paragraph, and
thereafter payments in respect of
such Swingline Loan shall be made to the
Administrative Agent and not to
such Swingline Bank. Any amounts received
by such Swingline Bank from the
applicable Borrower (or other party on
behalf of the applicable Borrower) in
respect of a Swingline Loan after receipt
by such Swingline Bank of the
proceeds of a sale of participations
therein shall be promptly remitted to
the Administrative Agent; any such amounts
received by the Administrative
Agent shall be promptly remitted by the
Administrative Agent to the Banks
that shall have made their payments
pursuant to this paragraph and to such
Swingline Bank, as their interests may
appear. The purchase of
participations in a Swingline Loan pursuant
to this paragraph shall not
relieve the Borrower of any default in the
payment thereof.
Section 2.06. Letters
of Credit.
-----------------
(a) General. Subject to the terms and conditions set forth
-------
herein, in addition to the Loans provided
for in Section 2.01, the Company
may request any Issuing Bank to issue, at
any time and from time to time
during the Revolving Credit Period, Letters
of Credit denominated in U.S.
Dollars for its own account or the account
of one or more Eligible
Subsidiaries in such form as is acceptable
to such Issuing Bank in its
reasonable determination. Letters of Credit
issued hereunder shall
constitute utilization of the Total
Commitment.
(b) Notice of Issuance, Amendment, Renewal or Extension.
---------------------------------------------------
To request the issuance of a Letter of
Credit (or the amendment, renewal or
extension of an outstanding Letter of
Credit), the Company shall hand
deliver or telecopy (or transmit by
electronic communication, if
arrangements for doing so have been
approved by the respective Issuing Bank)
to an Issuing Bank selected by it and to
the Administrative Agent
(reasonably in advance of the requested
date of issuance, amendment, renewal
or extension) a notice (which, if not
delivered electronically, shall be
executed by the Treasurer or an Assistant
Treasurer of the Company)
requesting the issuance of a Letter of
Credit, or identifying the Letter of
Credit to be amended, renewed or extended,
and specifying the date of
issuance, amendment, renewal or extension
(which shall be a Business Day),
the date on which such Letter of Credit is
to expire (which shall comply
with paragraph (d) of this Section), the
amount of such Letter of Credit,
the name and address of the beneficiary
thereof, if such Letter of Credit is
not being issued for the account of the
Company, the name of the Eligible
Subsidiary for whose account such Letter of
Credit is being issued and such
other information as shall be necessary to
prepare, amend, renew or extend
such Letter of Credit. If requested by the
respective Issuing Bank, the
Company and/or the applicable Eligible
Subsidiary also shall submit a letter
of credit application on such Issuing
Bank's standard form in connection
with any request for a Letter of Credit. In
the event of any inconsistency
between the terms and conditions of this
Agreement and the terms and
conditions of any form of letter of credit
application or other agreement
submitted by the Company and/or the
applicable Eligible Subsidiary to, or
entered into by the Company and/or the
applicable Eligible Subsidiary with,
an Issuing Bank relating to any Letter of
Credit, the terms and conditions
of this Agreement shall control.
22
<PAGE>
(c) Limitations on Amounts. A Letter of Credit shall be
----------------------
issued, amended, renewed or extended only
if (and upon issuance, amendment,
renewal or extension of each Letter of
Credit the Borrower shall be deemed
to represent and warrant that), after
giving effect to such issuance,
amendment, renewal or extension the
aggregate LC Exposures of the Issuing
Banks (determined for these purposes
without giving effect to the
participations therein of the Banks
pursuant to subsection (e) of this
Section) shall not exceed the lesser of (i)
$200,000,000 and (ii) the Total
Commitment at such time less the sum of the
aggregate principal amount of
Loans outstanding at such time.
(d) Expiration Date. Each Letter of Credit shall expire at
---------------
the date specified by the Company but not
later than the close of business
on the earlier of (i) the date twelve
months after the date of the issuance
of such Letter of Credit (or, in the case
of any renewal or extension
thereof, twelve months after the
then-current expiration date of such Letter
of Credit, so long as such renewal or
extension occurs within three months
of such then-current expiration date and
does not extend beyond the date in
clause (ii) hereof) and (ii) the date that
is five Business Days prior to
the Termination Date.
(e) Participations. By the issuance of a Letter of Credit
--------------
(or an amendment to a Letter of Credit
increasing the amount thereof) by any
Issuing Bank, and without any further
action on the part of such Issuing
Bank or the Banks, such Issuing Bank hereby
grants to each Bank, and each
Bank hereby acquires from such Issuing
Bank, a participation in such Letter
of Credit equal to such Bank's Pro Rata
Percentage of the aggregate amount
available to be drawn under such Letter of
Credit. Each Bank acknowledges
and agrees that its obligation to acquire
participations pursuant to this
paragraph in respect of Letters of Credit
is absolute and unconditional and
shall not be affected by any circumstance
whatsoever, including any
amendment, renewal or extension of any
Letter of Credit or the occurrence
and continuance of a Default or reduction
or termination of the Commitments.
In consideration and in furtherance of the foregoing, each
Bank hereby absolutely and unconditionally
agrees to pay to the
Administrative Agent, for account of the
respective Issuing Bank, such
Bank's Pro Rata Percentage of each LC
Disbursement made by an Issuing Bank
promptly upon the request of such Issuing
Bank at any time from the time
such LC Disbursement was required to be
reimbursed by the applicable
Borrower pursuant to Section 2.06(f) until
such LC Disbursement is
reimbursed by the applicable Borrower or at
any time after any reimbursement
payment is required to be refunded to the
applicable Borrower for any
reason. Such payment shall be made without
any offset, abatement,
withholding or reduction whatsoever. Each
such payment shall be made in the
same manner as provided in Section 2.03(d)
with respect to Loans made by
such Bank (and Section 2.03(d) shall apply,
mutatis mutandis, to the payment
------- --------
obligations of the Banks), and the
Administrative Agent shall promptly pay
to the respective Issuing Bank the amounts
so received by it from the Banks.
Promptly following receipt by the
Administrative Agent of any payment from
the applicable Borrower pursuant to the
next following paragraph, the
Administrative Agent shall distribute such
payment to the respective Issuing
Bank or, to the extent that the Banks have
made payments pursuant to this
paragraph to reimburse such Issuing Bank,
then to such Banks and such
Issuing Bank as their interests may appear.
Any payment made by a Bank
pursuant to this paragraph to
23
<PAGE>
reimburse an Issuing Bank for any LC
Disbursement shall not constitute a
Loan and shall not relieve the applicable
Borrower of its obligation to
reimburse such LC Disbursement.
(f) Reimbursement. If an Issuing Bank shall make any LC
-------------
Disbursement in respect of a Letter of
Credit issued for the account of any
Borrower, such Borrower shall reimburse
such Issuing Bank in respect of such
LC Disbursement by paying to the
Administrative Agent an amount equal to
such LC Disbursement not later than 12:00
Noon (New York City time), on (i)
the Business Day that the Borrower (on
behalf of such Borrower) receives
notice of such LC Disbursement, if such
notice is received prior to 10:00
A.M. (New York City time), or (ii) the
Business Day immediately following
the day that the Company (on behalf of such
Borrower) receives such notice,
if such notice is not received prior to
such time, provided that, if such LC
--------
Disbursement is not less than $10,000,000,
the Company may, subject to the
conditions to borrowing set forth herein,
request in accordance with Section
2.03 or 2.05 that such payment be financed
with a Base Rate Borrowing or a
Swingline Borrowing in an equivalent amount
and, to the extent so financed,
such Borrower's obligation to make such
payment shall be discharged and
replaced by the resulting Base Rate Loan or
Swingline Loan.
If the applicable Borrower fails to make such payment when
due, the Administrative Agent shall notify
each Bank of the applicable LC
Disbursement, the payment then due from
such Borrower in respect thereof and
such Bank's Pro Rata Percentage
thereof.
(g) Obligations Absolute. The obligation of each Borrower
--------------------
to reimburse LC Disbursements in respect of
Letters of Credit issued for its
account as provided in subsection (f) of
this Section shall be absolute,
unconditional and irrevocable, and shall be
performed strictly in accordance
with the terms of this Agreement under any
and all circumstances whatsoever
and irrespective of (i) any lack of
validity or enforceability of any Letter
of Credit, or any term or provision
therein, (ii) any draft or other
document presented under a Letter of Credit
proving to be forged, fraudulent
or invalid in any respect or any statement
therein being untrue or
inaccurate in any respect, (iii) payment by
the respective Issuing Bank
under a Letter of Credit against
presentation of a draft or other document
that does not comply strictly with the
terms of such Letter of Credit, (iv)
any counterclaim or setoff the respective
Issuing Bank has against the
beneficiary of such Letter of Credit, (v)
whether or not an Event of Default
has occurred, (vi) whether or not there has
been an adverse change in the
business of such Borrower and (vii) any
other event or circumstance
whatsoever, whether or not similar to any
of the foregoing, that might, but
for the provisions of this Section,
constitute a legal or equitable
discharge of such Borrower's obligations
hereunder.
Neither the Administrative Agent, the Banks nor any
Issuing Bank, nor any of their Related
Parties, shall have any liability or
responsibility by reason of or in
connection with the issuance or transfer
of any Letter of Credit by the respective
Issuing Bank or any payment or
failure to make any payment thereunder
(irrespective of any of the
circumstances referred to in the preceding
sentence), or any error,
omission, interruption, loss or delay in
transmission or delivery of any
draft, notice or other communication under
or relating to any Letter of
Credit (including any document required to
make a drawing thereunder), any
error in interpretation of technical terms
or any consequence arising from
causes beyond the control of the respective
Issuing Bank; provided that the
--------
foregoing shall not be construed to excuse
an Issuing Bank from
24
<PAGE>
liability to any Borrower to the extent of
any direct damages (as opposed to
consequential damages, claims in respect of
which are hereby waived by each
Borrower to the extent permitted by
applicable law) suffered by such
Borrower that are caused by such Issuing
Bank's gross negligence or willful
misconduct when determining whether drafts
and other documents presented
under a Letter of Credit issued for the
account of such Borrower comply with
the terms thereof. The parties hereto
expressly agree that:
(i) an Issuing Bank
may accept documents that appear on
their face to be in substantial compliance with the terms of a
Letter of Credit without responsibility for further
investigation,
regardless of any notice or information to the contrary, and
may
make payment upon presentation of documents that appear on
their
face to be in substantial compliance with the terms of such
Letter
of Credit;
(ii) an Issuing Bank shall have the right, in its sole
discretion, to decline to accept such documents and to make
such
payment if such documents are not in strict compliance with the
terms of such Letter of Credit; and
(iii) when determining whether drafts or other documents
comply with the terms of a Letter of Credit, an Issuing Bank
shall
act in accordance with its standard banking practices with
respect
to letters of credit, and this sentence shall establish the
standard of care to be exercised by an Issuing Bank when making
such a determination (and the parties hereto hereby waive, to
the
extent permitted by applicable law, any standard of care
inconsistent with the foregoing).
(h) Disbursement Procedures. The Issuing Bank for any
-----------------------
Letter of Credit shall, within a reasonable
time following its receipt
thereof, examine all documents purporting
to represent a demand for payment
under such Letter of Credit. Such Issuing
Bank shall promptly after such
examination notify the Administrative Agent
and the Company (on behalf of
the applicable Borrower) by telephone
(confirmed by telecopy) of such demand
for payment and whether such Issuing Bank
has made or will make an LC
Disbursement thereunder; provided that any
failure to give or delay in
--------
giving such notice shall not relieve such
Borrower of its obligation to
reimburse such Issuing Bank and the Banks
with respect to any such LC
Disbursement.
(i) Interim Interest. If the Issuing Bank for any Letter
----------------
of Credit shall make any LC Disbursement,
then, unless the Borrower for
whose account such Letter of Credit was
issued shall reimburse such LC
Disbursement in full on the date such LC
Disbursement is made, the unpaid
amount thereof shall bear interest, for
each day from and including the date
such LC Disbursement is made to but
excluding the date that such Borrower
reimburses such LC Disbursement, at the
rate per annum then applicable to
Base Rate Loans; provided that, if such
Borrower fails to reimburse such LC
--------
Disbursement when due pursuant to
subsection (f) of this Section, then such
overdue amounts 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 for such day. Interest accrued
pursuant to this paragraph shall
be for account of such Issuing Bank, except
that interest accrued on and
after the date of payment by any Bank
pursuant to Subsection (e) of this
Section to reimburse such Issuing Bank
shall be for account of such Bank to
the extent of such payment.
25
<PAGE>
(j) Addition and Termination of Issuing Banks. Any Bank
-----------------------------------------
may be added as an Issuing Bank at any time
pursuant to a written agreement
among the Company, the Administrative Agent
and such Bank and to be in form
and substance reasonably satisfactory to
such Bank and the Administrative
Agent. The Administrative Agent shall
notify the Bank of each additional
Issuing Bank. From and after the effective
date of any such addition, (i)
the additional Issuing Bank shall have all
the rights and obligations of an
Issuing Bank under this Agreement with
respect to Letters of Credit to be
issued by it thereafter and (ii) references
herein to the term "Issuing
Bank" shall be deemed to include such
additional Issuing Bank.
In addition, any Issuing Bank, with the consent of the
Company, may cease being an Issuing Bank at
any time pursuant to a written
agreement among the Company, the
Administrative Agent and such Issuing Bank
and to be in form and substance reasonably
satisfactory to such terminating
Issuing Bank, the Administrative Agent and
the Company. The Administrative
Agent shall notify the Banks of each
terminating Issuing Bank. At the time
such termination is effective, the Company
shall pay all unpaid fees accrued
for account of the respective terminating
Issuing Bank. After the
termination of an Issuing Bank, such
Issuing Bank shall remain a party
hereto as an Issuing Bank and shall
continue to have all the rights and
obligations of an Issuing Bank with respect
to the Letters of Credit issued
by it prior to such termination, but shall
not be required to issue
additional Letters of Credit.
(k) Cash Collateralization. If an Event of Default shall
----------------------
occur and be continuing and the Company (on
behalf of the applicable
Borrowers) receives notice from the
Administrative Agent or the Required
Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with
LC Exposure representing more than 50% of
the total LC Exposure) demanding
the deposit of cash collateral pursuant to
this paragraph, the Borrowers
shall immediately deposit into a collateral
account specified by the
Administrative Agent (the "Collateral
Account") an amount in cash equal to
------------------
the LC Exposure as of such date plus any
accrued and unpaid interest on the
----
amount of unreimbursed LC Disbursements;
provided that the obligation to
--------
deposit such cash collateral shall become
effective immediately, and such
deposit shall become immediately due and
payable, without demand or other
notice of any kind, upon the occurrence of
any Event of Default described in
6.01(f) or (g). Such deposit shall be held
by the Administrative Agent in
the Collateral Account as collateral for
the LC Exposure, and for these
purposes each Borrower hereby grants a
security interest to the
Administrative Agent for the benefit of the
Banks in the Collateral Account
and in any financial assets (as defined in
the Uniform Commercial Code) or
other property held therein. In the event
that such deposit at any time
exceeds such aggregate LC Exposure at such
time plus such accrued and unpaid
----
interest on the amount of unreimbursed LC
Disbursements, the Administrative
Agent shall promptly pay to the Company the
amount of such excess. To the
extent permitted by law, such deposit shall
be promptly used to pay
unreimbursed LC Disbursements plus any
accrued and unpaid interest thereon.
Section 2.07. 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
26
<PAGE>
Eligible Subsidiary to borrow any
Negotiated Rate Loan in an amount that
would result in the sum of the aggregate
principal amount of the outstanding
Loans plus the total LC Exposure 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 2.08. 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 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 2.09. 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).
27
<PAGE>
Section 2.10. 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 and, in the case of any
prepayment, as specified in
Section 2.13. 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), (d), (e) and (f) 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 plus,
for any Commitment Utilization Day,
----
the Additional Margin. 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 and, in the
case of any prepayment, as specified in
Section 2.13. 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 2.18.
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
28
<PAGE>
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 plus, for any
----
Commitment Utilization Day, the Additional
Margin. 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 and, in the
case of any prepayment, as specified
in Section 2.13.
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 2.18.
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
29
<PAGE>
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
