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<SEC-DOCUMENT>0001068800-04-000195.txt : 20040311
<SEC-HEADER>0001068800-04-000195.hdr.sgml : 20040311
<ACCEPTANCE-DATETIME>20040311092852
ACCESSION NUMBER: 0001068800-04-000195
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 14
CONFORMED PERIOD OF REPORT: 20031231
FILED AS OF DATE: 20040311
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: ANHEUSER BUSCH COMPANIES INC
CENTRAL INDEX KEY: 0000310569
STANDARD INDUSTRIAL CLASSIFICATION: MALT BEVERAGES [2082]
IRS NUMBER: 431162835
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 10-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-07823
FILM NUMBER: 04661861
BUSINESS ADDRESS:
STREET 1: ONE BUSCH PL
CITY: ST LOUIS
STATE: MO
ZIP: 63118-1852
BUSINESS PHONE: 3147656565
MAIL ADDRESS:
STREET 1: ONE BUSCH PL
CITY: ST LOUIS
STATE: MO
ZIP: 63118-1852
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<FILENAME>ab10k.txt
<TEXT>
<PAGE>
============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-K
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2003
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ____________ TO _____________
COMMISSION FILE NUMBER 1-7823
ANHEUSER-BUSCH COMPANIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE 43-1162835
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
ONE BUSCH PLACE, ST. LOUIS, MISSOURI 63118
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: 314-577-2000
----------------------
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
------------------- ---------------------
COMMON STOCK--$1 PAR VALUE NEW YORK STOCK EXCHANGE
PREFERRED STOCK PURCHASE RIGHTS NEW YORK STOCK EXCHANGE
6 1/2% DEBENTURES DUE JANUARY 1, 2028 NEW YORK STOCK EXCHANGE
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
NONE
-------------------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No __
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form
10-K or any amendment to this Form 10-K. [X]
Indicate by check mark whether the registrant is an accelerated filer
(as defined in Exchange Act Rule 12b-2.) Yes X No __
As of June 30, 2003, the aggregate market value of the voting stock
held by non-affiliates of the registrant was $41,874,456,576.
Indicate the number of shares outstanding of each of the registrant's
classes of common stock, as of the latest practicable date.
$1 PAR VALUE COMMON STOCK 810,685,090 SHARES AS OF MARCH 1, 2004
DOCUMENTS INCORPORATED BY REFERENCE
Portions of Annual Report to Shareholders for
the Year Ended December 31, 2003........... PART I, PART II, and PART IV
Portions of Definitive Proxy Statement for
Annual Meeting of Stockholders on
April 28, 2004............................. PART III
============================================================================
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PART I
ITEM 1. BUSINESS
Anheuser-Busch Companies, Inc. (the "Company") is a Delaware
corporation that was organized in 1979 as the holding company parent of
Anheuser-Busch, Incorporated ("ABI"), a Missouri corporation whose origins
date back to 1875. In addition to ABI, which is the world's largest brewer
of beer, the Company is also the parent corporation to a number of
subsidiaries that conduct various other business operations. The Company's
operations are comprised of the following principal business segments:
domestic beer, international beer, packaging, entertainment, and other. In
2003, domestic beer contributed 77.6% and 93.1%, international beer
contributed 4.5% and 19.3%, packaging contributed 8.7% and 4.6%, and
entertainment contributed 6.5% and 4.9% to consolidated net sales and
consolidated net income, respectively. The individual percentages above do
not add to 100% due to the impact of unallocated corporate sales and
expenses, as detailed in the Company's business segments disclosure.
Approximately 95.5% of the Company's consolidated net sales and 96.8% of
the Company's consolidated income before income taxes is generated in the
United States. Financial information with respect to the Company's business
segments appears in Note 15, "Business Segments," on pages 55-56 of the
2003 Annual Report to Shareholders, which Note hereby is incorporated by
reference.
Domestic beer volume was 102.6 million barrels in 2003 as compared with
101.8 million barrels in 2002. Domestic volume represents Anheuser-Busch
brands produced and shipped within the United States including Puerto Rico
and the Caribbean. Worldwide sales of the Company's beer brands aggregated
111.0 million barrels in 2003 as compared with 109.8 million barrels in
2002. Worldwide beer volume is comprised of domestic and international
volume. International volume represents Anheuser-Busch brands produced
overseas by Company-owned breweries and under license and contract brewing
agreements, plus exports from the Company's U.S. breweries to markets
around the world. Total volume includes worldwide Anheuser-Busch brand
volume combined with the Company's ownership percentage share of the volume
of its international equity partners. Total beer volume was 129.8 million
barrels and 127.9 million barrels in 2003 and 2002, respectively.
DOMESTIC BEER
The Company's principal product is beer, produced and distributed by
its subsidiary, ABI, in a variety of containers primarily under the brand
names Budweiser, Bud Light, Bud Dry, Bud Ice, Bud Ice Light, Michelob,
Michelob Light, Michelob ULTRA, Michelob Golden Draft, Michelob Golden
Draft Light, Michelob Amber Bock, Michelob Honey Lager, Michelob Marzen,
Busch, Busch Light, Busch Ice, Natural Light, Natural Ice, King Cobra,
ZiegenBock Amber, Hurricane Malt Liquor, Hurricane Ice, "Doc's" Hard Lemon,
Tequiza, and Bacardi Silver. ABI's products also include three non-alcohol
beverages, O'Doul's, Busch NA, and O'Doul's Amber. During 2003, ABI
introduced Bacardi Silver O3, Bacardi Silver Raz, Anheuser World Select,
Bare Knuckle Stout, and ZiegenBock Light and discontinued Michelob
Hefeweizen, Michelob Black & Tan, Killarney's, and Pacific Ridge Ale. The
Company brews Kirin Light, Kirin Lager, and Kirin-Ichiban through a joint
venture agreement with Kirin Brewing Company, Ltd. of Japan for sale in the
United States. ABI owns a 29.9% equity interest in Seattle-based Redhook
Ale Brewery, Inc. Through this alliance, Redhook products are distributed
by many ABI wholesalers and exclusively by ABI wholesalers in all new U.S.
markets entered by Redhook since 1994. ABI also owns a 36% interest in
Portland-based Widmer Brothers Brewing Company. Widmer products are
distributed by many ABI wholesalers and exclusively by ABI wholesalers in
all new U.S. markets entered by Widmer since 1997.
Budweiser, Bud Light, Bud Ice, Bud Ice Light, Michelob, Michelob Light,
Michelob ULTRA, Michelob Golden Draft, Michelob Golden Draft Light,
Michelob Amber Bock, Busch, Busch Light, Natural Light, Natural Ice,
ZiegenBock Amber, "Doc's" Hard Lemon, Bacardi Silver, Barcardi Silver O3,
Barcardi Silver Raz, Kirin-Ichiban, O'Doul's, O'Doul's Amber, Anheuser
World Select, and ZiegenBock Light are sold in both draught and packaged
form. Bud Dry, Busch Ice, King Cobra, Michelob Marzen, Michelob Honey
Lager, Hurricane Malt Liquor, Hurricane Ice, Tequiza, Kirin Lager, Kirin
Light, and Busch NA are sold only in packaged form. Bare Knuckle Stout is
sold only in draught form.
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Budweiser, Bud Light, Bud Ice, Michelob, Michelob Light, Michelob
ULTRA, Michelob Amber Bock, Busch, Busch Light, Natural Light, Natural Ice,
Tequiza, "Doc's" Hard Lemon, O'Doul's, O'Doul's Amber, Bacardi Silver,
Bacardi Silver O3, and Barcardi Silver Raz are distributed and sold on a
nationwide basis. Michelob Honey Lager, Bud Ice Light, Anheuser World
Select, and Redhook Ales are sold in 48 states; Bud Dry and King Cobra in
46 states, Busch NA in 45 states, Kirin Lager in 43 states, Kirin-Ichiban
in 42 states, Hurricane Malt Liquor and Widmer beer products in 36 states,
Kirin Light in 32 states, Busch Ice in 19 states, Bare Knuckle Stout in 12
states, Michelob Golden Draft and Michelob Golden Light in 7 states,
Hurricane Ice in 2 states, and ZiegenBock Amber and ZiegenBock Light in one
state.
ABI has developed a system of twelve breweries, strategically located
across the country, to economically serve its distribution system. (See
Item 2 of Part I--Properties.) Ongoing modernization programs at the
Company's breweries are part of ABI's overall strategic initiatives.
During 2003, approximately 93% of the beer sold by ABI, measured in
barrels, reached retail channels through more than 600 independent
wholesalers. The Company has a formal, written distribution agreement (the
Equity Agreement) with each of its wholesalers. Each Equity Agreement
generally specifies the territory in which the wholesaler is permitted to
sell the Company's products, the brands that the wholesaler is permitted to
sell, performance standards applicable to the wholesaler, procedures to be
followed by the wholesaler in connection with the sale of the distribution
rights, and circumstances upon which the distribution rights may be
terminated. By wholesaler use of controlled environment warehouses and
stringent inventory monitoring policies, the quality and freshness of the
product are protected, thus providing ABI a significant competitive
advantage. ABI utilizes its regional vice-presidents, sales directors, key
account and market managers, as well as certain other sales personnel, to
provide strategic sales planning and merchandising assistance to its
wholesalers. In addition, ABI provides national and local media
advertising, point-of-sale advertising, and sales promotion programs to
promote its brands. The remainder of ABI's domestic beer sales in 2003 were
made through 14 branches that perform similar sales, merchandising, and
delivery services as wholesalers in their respective areas; these branches
are owned and operated by the Company or direct or indirect subsidiaries of
the Company. ABI's peak selling periods are the second and third quarters.
There are more than 100 companies engaged in the highly competitive
brewing industry in the United States. ABI's domestic beers are distributed
and sold in competition with other nationally distributed beers, with
locally and regionally distributed beers, and with imported beers. Although
the methods of competition in the industry vary widely, in part due to
differences in applicable state laws, the principal methods of competition
are product quality, taste and freshness, packaging, price, advertising
(including television, radio, sponsorships, billboards, stadium signs, and
print media), point-of-sale materials, and service to retail customers.
ABI's beers compete in different price categories. Although all brands
compete against the total market, Budweiser, Bud Light, Bud Dry, Bud Ice,
Bud Ice Light, Michelob Golden Draft, and Michelob Golden Draft Light
compete primarily with premium priced beers. Busch, Busch Light, Busch Ice,
Natural Light, and Natural Ice compete with the sub-premium or popular
priced beers. King Cobra, Hurricane Malt Liquor, and Hurricane Ice compete
against other brands in the malt liquor segment. Michelob, Michelob Light,
Michelob Amber Bock, Kirin Lager, Kirin Light, Kirin-Ichiban, Michelob
Honey Lager, Tequiza, ZiegenBock Amber, ZiegenBock Light, "Doc's" Hard
Lemon, Michelob Marzen, Bacardi Silver, Michelob ULTRA, Bacardi Silver O3,
Bacardi Silver Raz, Anheuser World Select, Bare Knuckle Stout, the Redhook
products, and Widmer beer products compete primarily in the above premium
priced beer segment of the malt beverage market. O'Doul's and O'Doul's
Amber (premium priced) and Busch NA (sub-premium priced) compete in the
non-alcohol malt beverage category. Since 1957, ABI has led the United
States brewing industry in total sales volume. In 2003, its sales exceeded
those of its nearest competitor by more than 65 million barrels. ABI's
domestic market share (excluding exports) for 2003 was approximately 50%.
Major competitors in the United States brewing industry during 2003
included SABMiller, Adolph Coors Co., Pabst Brewery Co., Grupo Modelo, S.A.
de C.V., and Heineken.
The Company has an energy drink, "180," in the alternative beverage
segment. "180" is distributed and sold on a nationwide basis and is
available in single eight-ounce slim-line cans. The Company also has an
enhanced water beverage drink, "180 Sport," in the alternative beverage
segment. "180 Sport" is distributed and sold in two flavors in test markets
in four states and is available in 24 packs of 15.5 ounce cans.
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The Company's wholly-owned subsidiary, Busch Agricultural Resources,
Inc. ("BARI"), operates rice milling facilities in Arkansas and California;
twelve grain elevators in the western and midwestern United States; barley
seed processing plants in Fairfield, Montana, Idaho Falls, Idaho, and
Powell, Wyoming; a barley research facility in Ft. Collins, Colorado; and a
rice research facility in California. BARI also owns and operates malt
plants in Manitowoc, Wisconsin, Moorhead, Minnesota, and Idaho Falls,
Idaho. Through wholly-owned subsidiaries, BARI operates land application
farms in Jacksonville, Florida and Fort Collins, Colorado; hop farms in
Bonners Ferry, Idaho and Huell, Germany; and a barley office in Winnipeg,
Canada.
Another wholly-owned subsidiary, Wholesaler Equity Development
Corporation, shares equity positions with qualified partners in independent
beer wholesalerships and is currently invested in 3 wholesalerships.
INTERNATIONAL BEER
International beer volume was nearly 8.4 million barrels in 2003,
compared with 8.0 million barrels in 2002. Anheuser-Busch International,
Inc. ("ABII"), a wholly-owned subsidiary of the Company, oversees the
marketing and sale of Budweiser and other ABI brands outside the U.S.,
operates breweries in the United Kingdom (U.K.) and China, negotiates and
administers license and contract brewing agreements on behalf of ABI with
various foreign brewers, and negotiates and manages equity investments in
foreign brewing partners.
Through Anheuser-Busch Europe Limited ("ABEL"), an indirect,
wholly-owned subsidiary of the Company, certain ABI beer brands are
marketed, distributed, and sold in more than thirty countries. In the U.K.,
ABEL sells Budweiser, Bud Ice, Michelob, and Michelob ULTRA brands to
selected on-premise accounts, brewers, wholesalers, and directly to
off-premise accounts. Budweiser, Bud Ice, Michelob, and Michelob ULTRA are
brewed and packaged at the Stag Brewery near London, England which is
managed and operated by ABEL. Anheuser World Select is imported into the
U.K. by ABEL.
In Canada, Budweiser, Bud Light, Busch and Busch Light are brewed and
sold through a license agreement with Labatt Brewing Co. O'Doul's is
imported into Canada. In Japan, Budweiser is brewed and sold through a
license agreement with Kirin Brewery Company, Limited. Budweiser is also
brewed under license and sold by brewers in Korea (Oriental Brewery Co.,
Ltd.), the Republic of Ireland and Northern Ireland (Guinness Ireland
Limited), Italy (Heineken Italia S.A.), and Spain (Sociedad Anonima Damm).
The Company has an agreement with Brasseries Kronenbourg for sale and
distribution of Bud in France.
In 1995, the Company formed an alliance with Compania Cervecerias Unidas
S.A. ("CCU"), the leading Chilean brewer. Under the terms of the alliance,
a subsidiary of CCU in Argentina ("CCU-Argentina") brews and distributes
Budweiser under license in Argentina and Uruguay, and under contract for
sale in Chile. CCU also distributes Budweiser in Chile. The Company has a
direct and indirect ownership interest of approximately 29% of
CCU-Argentina and approximately 20% of CCU.
In 1995, the Company purchased an initial 80% equity interest in a
joint venture, renamed the Budweiser Wuhan International Brewing Company,
Ltd., that owns and operates a brewery in Wuhan, the fifth-largest city in
China. This ownership interest has subsequently increased to 97%. The
Company has an agreement with Tsingtao Brewing Company, Ltd., the largest
brewer in China, and producer of the Tsingtao brand, whereby the Company
has committed to invest $182 million in Tsingtao convertible bonds that if
fully converted over the next several years, will increase its economic
ownership interest to 27% of Tsingtao. In April 2003, the Company invested
$116 million in two convertible bonds of Tsingtao and invested an
additional $33 million in a third convertible bond in October 2003. The
Company plans to make a final investment of $33 million in the first half
of 2004. In July 2003, the Company converted the first bond, which
increased its equity interest in Tsingtao from 4.5% to 9.9%.
In 1993, Anheuser-Busch purchased a 17.7% direct and indirect equity
interest in Grupo Modelo's operating subsidiary, Diblo, for $477 million.
As noted in Note 2, "International Equity Investments," on page 47 of the
2003 Annual Report, which Note is hereby incorporated by reference, Diblo
is the operating subsidiary of Grupo Modelo, Mexico's largest brewer.
Accordingly, Diblo operates in Mexico and is a brewer. In May 1997, the
Company increased its direct and indirect equity ownership in Diblo to 37%
for an additional $605 million. In September 1998, the Company completed
the purchase of an additional 13.25% of Diblo for
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$556.5 million, bringing the Company's total investment to $1.6 billion.
The Company now owns a 50.2% direct and indirect interest in Diblo.
However, the Company does not have voting or other effective control of
either Grupo Modelo or Diblo.
Competition for International Beer operations differs significantly
depending upon the specific country involved. For 2003, no single foreign
country or region accounted for more than 2.4% of consolidated revenues or
1.7% of consolidated income before income taxes. The Company's primary
foreign markets for beer sales are China, the United Kingdom, Canada and
Ireland. In each international market, the Company competes against a mix
of national, regional, local, and imported beer brands. In China,
competition is primarily from numerous national and regional brands. There
is no dominant competitor in China. In the United Kingdom, the top four
competitors--Scottish & Newcastle, Coors Brewers, Interbrew, and
Carlsberg-Tetley--have combined market share of nearly 77%, with Scottish &
Newcastle having a share of approximately 25%. The Company's share is 3%.
In Ireland, the market leader is the Company's license brewing partner,
Guinness Ireland, with a market share of 71% including a share of 15%
related to the Company's products. In Canada, the top two competitors, of
similar size, are Molson and the Company's license brewing partner, Labatt
Brewing. Their combined market share is more than 86% including a share of
13% related to the Company's products.
Results for the International Beer Segment also include the Company's
ownership percentage of the net income of Grupo Modelo, the largest seller
of beer in Mexico. Modelo's principal competitor in Mexico is Femsa, with
the two companies having respective market shares of 57% and 43%. Although
Anheuser-Busch does not compete directly in the Mexican beer market, a
significant change in Modelo's business could have a material effect on the
Company's reported net income and earnings per share.
Financial information with respect to the Company's business segments
appears in Note 15, "Business Segments," on pages 55-56 of the 2003 Annual
Report, which Note is hereby incorporated by reference.
PACKAGING
The Company's packaging operations are handled through the following
wholly-owned subsidiaries of the Company: Metal Container Corporation,
which manufactures beverage cans at eight plants and beverage can lids at
three plants for sale to ABI, U.S. soft drink customers, and Grupo Modelo
(See Item 2 of Part 1--Properties); Anheuser-Busch Recycling Corporation,
which buys and sells used beverage containers from its corporate office in
Sunset Hills, Missouri and recycles aluminum cans at its plant in Hayward,
California; Precision Printing and Packaging, Inc., which manufactures
metalized and paper labels at its plant in Clarksville, Tennessee; and
Eagle Packaging, Inc., which manufactures crown and closure liner materials
for ABI at its plant in Bridgeton, Missouri.
Through a wholly-owned limited partnership known as Longhorn Glass
Manufacturing, L.P., the Company owns and operates a glass manufacturing
plant in Jacinto City, Texas, which manufactures glass bottles for the
Company's nearby Houston brewery.
FAMILY ENTERTAINMENT
The Company is active in the family entertainment field, primarily
through its wholly-owned subsidiary, Busch Entertainment Corporation
("BEC"), which currently owns, directly and through subsidiaries, nine
theme parks.
BEC operates Busch Gardens theme parks in Tampa, Florida and
Williamsburg, Virginia, and SeaWorld theme parks in Orlando, Florida, San
Antonio, Texas, and San Diego, California. BEC operates water park
attractions in Tampa, Florida (Adventure Island) and Williamsburg, Virginia
(Water Country, U.S.A.), and Langhorne, Pennsylvania (Sesame Place), as
well as Discovery Cove in Orlando, Florida, a reservations-only attraction
offering interaction with marine animals. Due to the seasonality of the
theme park business, BEC experiences higher revenues in the second and
third quarters than in the first and fourth quarters.
Through a Spanish affiliate, the Company also owns a 13.6% equity
interest in Port Aventura, S.A., which is a theme park near Barcelona,
Spain.
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The Company is the third largest theme park operator in the United
States. It faces competition in the family entertainment field from other
theme and amusement parks, public zoos, public parks, and other family
entertainment events and attractions. Major competitors in the theme park
industry during 2003 include Walt Disney Co. and Six Flags Parks. No
reliable national market share information is available for the theme park
industry.
OTHER
Through its wholly-owned subsidiary, Busch Properties, Inc. ("BPI"),
the Company is engaged in the business of real estate development. BPI also
owns and operates The Kingsmill Resort and Conference Center in
Williamsburg, Virginia.
Through a wholly-owned subsidiary, the Company owns and operates a
transportation service business (Manufacturers Railway Co.).
SOURCES AND AVAILABILITY OF RAW MATERIALS
The products manufactured by the Company require a large volume of
various agricultural products, including hops, malt (barley), rice, and
corn grits for beer; and rice and barley for the rice milling and malting
operations of Busch Agricultural Resources, Inc. The Company fulfills its
commodities requirements through purchases from various sources, including
purchases from its subsidiaries, through contractual arrangements, and
through purchases on the open market. The Company believes that adequate
supplies of the aforementioned agricultural products are available at the
present time, but cannot predict future availability or prices of such
products and materials. The above referenced commodities have experienced
and will continue to experience price fluctuations. The price and supply of
raw materials will be determined by, among other factors, the level of crop
production both in the U.S. and around the world, weather conditions,
export demand, and government regulations and legislation affecting
agriculture and trade.
The Company uses water in brewing its beer. The Company generally
satisfies its requirements for water from municipal water systems and
privately owned wells.
The Company also requires aluminum cansheet for the manufacture of cans
and lids. The cansheet market experiences price volatility due to the
supply and demand balance for both aluminum ingot and sheet fabrication.
The Company manages its aluminum supply and cost using various methods
including long-term purchase contracts and hedging techniques.
ENERGY MATTERS
The Company uses natural gas, fuel oil, and coal as its primary fuel
materials. The Company believes that adequate supplies of fuel and
electricity are available at the present time, but cannot predict future
availability or market prices. Where economically feasible, the Company has
alternate fuel capability and limited electric generation which helps
ensure continued operation of essential processes.
The energy commodity markets have experienced and will continue to
experience significant price volatility due to perceived volatility of both
supply and demand. The Company manages its energy costs using various
methods including supply contracts, hedging techniques, and fuel switching.
BRAND NAMES AND TRADEMARKS
Some of the Company's major brand names used in its principal business
segments are mentioned in the discussion above. The Company regards
consumer recognition of and loyalty to all of its brand names and
trademarks as extremely important to the long-term success of its principal
business segments. The Company owns rights to its principal brand names and
trademarks in perpetuity.
RESEARCH AND DEVELOPMENT
The Company is involved in a number of research activities relating to
the development of new products or services or the improvement of existing
products or services. The dollar amounts expended by the Company
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during the past three years on such research activities and the number of
employees engaged full time therein during such period, however, are not
considered to be material in relation to the total business of the Company.
ENVIRONMENTAL PROTECTION
All of the Company's facilities are subject to federal, state, and
local environmental protection laws and regulations, and the Company is
operating within existing laws and regulations or is taking action aimed at
assuring compliance therewith. Various proactive strategies are utilized to
help assure this compliance. Compliance with such laws and regulations is
not expected to materially affect the Company's capital expenditures,
earnings, or competitive position. The Company has devoted considerable
effort to research, development, and engineering of cost effective
innovative systems to minimize effects on the environment from its
operating facilities.
These projects, coupled with the Company's Environmental Management
System and an overall Company emphasis on pollution prevention and resource
conservation initiatives, are improving efficiencies and creating saleable
by-products from residuals. They have generally facilitated lower cost
operating systems while reducing the impact to air, water, and land.
ENVIRONMENTAL PACKAGING LAWS AND REGULATIONS
The states of California, Connecticut, Delaware, Iowa, Maine,
Massachusetts, Michigan, New York, Oregon, and Vermont have adopted certain
restrictive packaging laws and regulations for beverages that require
deposits on packages. The state of Hawaii has passed a deposit law that is
scheduled to go into effect in 2005. ABI continues to do business in these
states. While such laws have not had a significant effect on ABI's market
share, they have resulted in significantly higher beer prices over and
above the cost of the deposit in those states that have adopted container
deposit laws as well as had an adverse impact on beer industry growth in
those states. The Company considers deposit laws to be inflationary,
costly, and inefficient for recycling packaging materials. Congress and a
number of additional states continue to consider similar legislation, the
adoption of which might require the Company to incur significant capital
expenditures to comply as some proposed container deposit laws would
require the use of returnable, reusable bottles. As a result, the Company
would be required to acquire equipment to receive, sort, inspect and clean
bottles.
NUMBER OF EMPLOYEES
As of December 31, 2003, the Company had 23,316 full-time employees.
As of December 31, 2003, approximately 8,642 employees were represented
by the International Brotherhood of Teamsters. Eighteen other unions
represented approximately 1,140 employees. In December 2003, employees
represented by the Brewery and Soft Drink Conference of the International
Brotherhood of Teamsters ("Teamsters") approved a new five-year labor
contract. The new labor agreement between ABI and the Teamsters, which
represents the majority of brewery workers, expires February 28, 2009.
The Company considers its employee relations to be good.
AVAILABLE INFORMATION
The Company maintains a website on the World Wide Web at
www.anheuserbusch.com. The Company makes available, free of charge, on its
website its annual reports on Form 10-K, quarterly reports on Form 10-Q,
current reports on Form 8-K and amendments to those reports filed or
furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended, as soon as reasonably practicable after such reports
are electronically filed with, or furnished to, the SEC. The Company's
reports filed with, or furnished to, the SEC are also available on the
SEC's website at www.sec.gov.
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ITEM 2. PROPERTIES
ABI has twelve breweries in operation at the present time, located in
St. Louis, Missouri; Newark, New Jersey; Los Angeles and Fairfield,
California; Jacksonville, Florida; Houston, Texas; Columbus, Ohio;
Merrimack, New Hampshire; Williamsburg, Virginia; Baldwinsville, New York;
Fort Collins, Colorado; and Cartersville, Georgia. Title to the
Baldwinsville, New York brewery is held by the Onondaga County Industrial
Development Agency ("OCIDA") pursuant to a Sale and Agency Agreement with
ABI, which enabled OCIDA to issue tax exempt pollution control and
industrial development revenue notes and bonds to finance a portion of the
cost of the purchase and modification of the brewery. The brewery is not
pledged or mortgaged to secure any of the notes or bonds, and the Sale and
Agency Agreement with OCIDA gives ABI the unconditional right to require at
any time that title to the brewery be transferred to ABI. ABI's breweries
operated at approximately 95% of capacity in 2003; during the peak selling
periods (second and third quarters), they operated at maximum capacity. The
Company also owns a 97% equity interest in a joint venture that owns and
operates a brewery in Wuhan, China. The Company also leases and operates
the Stag Brewery near London, England.
The Company, through wholly-owned subsidiaries, operates malt plants in
Manitowoc, Wisconsin, Moorhead, Minnesota, and Idaho Falls, Idaho; rice
mills in Jonesboro, Arkansas and Woodland, California; hop farms in Bonners
Ferry, Idaho and Huell, Germany; can manufacturing plants in Jacksonville,
Florida, Columbus, Ohio, Arnold, Missouri, Windsor, Colorado, Newburgh, New
York, Ft. Atkinson, Wisconsin, Rome, Georgia, and Mira Loma, California;
can lid manufacturing plants in Gainesville, Florida, Oklahoma City,
Oklahoma, and Riverside, California; a label plant in Clarksville,
Tennessee; a crown and closure liner material plant in Bridgeton, Missouri;
and an aluminum can recycling plant in Hayward, California. The Company
operates a glass manufacturing plant in Jacinto City, Texas through a
wholly-owned limited partnership.
BEC operates its principal family entertainment facilities in Tampa,
Florida; Williamsburg, Virginia; San Diego, California; Orlando, Florida;
and San Antonio, Texas. The Tampa facility is 336 acres, the Williamsburg
facility is 323 acres, the San Diego facility is 166 acres, the Orlando
facility is 247 acres, and the San Antonio facility is 316 acres.
Except for the Baldwinsville brewery, the can manufacturing plants in
Newburgh, New York and Rome, Georgia, the SeaWorld park in San Diego,
California, the Stag Brewery, and the brewery in Wuhan, China, all of the
Company's principal properties are owned in fee. The lease for the land
used by the SeaWorld park in San Diego, California expires in 2048. The
Company leases the Stag Brewery from Scottish & Newcastle. In 1995, the
joint venture that operates the brewery in Wuhan was granted the right to
use the property for a period of 50 years from the appropriate governmental
authorities. The Company also leases a bottling line at its brewery in
Cartersville, Georgia. The Company considers its buildings, improvements,
and equipment to be well maintained and in good condition, irrespective of
dates of initial construction, and adequate to meet the operating demands
placed upon them. The production capacity of each of the manufacturing
facilities is adequate for current needs and, except as described above,
substantially all of each facility's capacity is utilized.
ITEM 3. LEGAL PROCEEDINGS
The Company is a party to a lawsuit with the Maris Distributing
Company. Information regarding this lawsuit is contained in Note 12,
"Commitments and Contingencies," on pages 54-55 of the 2003 Annual Report
to Shareholders, which note hereby is incorporated by reference.
On February 6, 2004, the Company was served with a complaint brought by
two individuals seeking to bring a class action on behalf of all California
residents who, while they were under 21 years of age, purchased alcohol
beverages manufactured by the Company and another defendant during the last
four years. Among other matters, the plaintiffs allege violations of
California's statutory unfair competition law. Plaintiffs seek the
disgorgement of unspecified profits earned by the Company in the past and
other unspecified damages and equitable relief. This action is in its
preliminary stage and the Company strongly denies plaintiffs' allegations.
The Company believes it has meritorious defenses and intends to defend
itself vigorously in this action.
7
<PAGE>
<PAGE>
The Company is not a party to any other pending or threatened
litigation, the outcome of which would be expected to have a material
adverse effect upon its financial condition or its results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders, through
the solicitation of proxies or otherwise, during the fourth quarter ended
December 31, 2003.
EXECUTIVE OFFICERS OF THE REGISTRANT
PATRICK T. STOKES (age 61) is presently President and Chief Executive
Officer and a Director of the Company and has served in such capacities
since 2002, 2002, and 2000, respectively. He previously served as Senior
Executive Vice President (2000-2002), and Vice President and Group
Executive (1981-2000) of the Company. He is also presently Chairman and
Chief Executive Officer of the Company's subsidiary, Anheuser-Busch,
Incorporated, and has served in such capacities since 2002 and 2000,
respectively, and Chairman of the Board of the Company's subsidiary,
Anheuser-Busch International, Inc., and has served in such capacity since
1999. He previously served as President of Anheuser-Busch, Incorporated
(1990-2002).
AUGUST A. BUSCH III (age 66) is presently Chairman of the Board and a
Director of the Company and has served in such capacities since 1977 and
1963, respectively. He previously served as President of the Company
(1974-2002). He also serves as Executive Vice President of the Company's
subsidiary, Anheuser-Busch, Incorporated, and has served in such capacity
since 2002, and had previously served as its Chairman of the Board
(1979-2002) and also as its Chief Executive Officer (1979-2000).
W. RANDOLPH BAKER (age 57) is presently Vice President and Chief
Financial Officer of the Company and has served in such capacity since
1996.
STEPHEN K. LAMBRIGHT (age 61) is presently Group Vice President and
Chief Legal Officer of the Company and has served in such capacity since
January 2004. He previously served as Group Vice President and General
Counsel (1997-2003).
DONALD W. KLOTH (age 62) is presently Vice President and Group
Executive of the Company and has served in such capacity since 1994. He is
also Chairman of the Board and Chief Executive Officer of the Company's
subsidiary, Busch Agricultural Resources, Inc., and has served in such
capacity since 1994.
JOHN E. JACOB (age 69) is presently Executive Vice President-Global
Communications and a Director of the Company and has served in such
capacities since 2002 and 1990, respectively. He previously served as the
Company's Executive Vice President and Chief Communications Officer
(1994-2002). He also serves as Executive Vice President of the Company's
subsidiary, Anheuser-Busch, Incorporated, and has served in such capacity
since 2002.
THOMAS W. SANTEL (age 45) is presently Vice President-Corporate
Development of the Company and has served in such capacity since 1996.
STEPHEN J. BURROWS (age 52) is presently Vice President-International
Operations of the Company and has served in such capacity since 1999. He is
also presently Chief Executive Officer and President of the Company's
subsidiary, Anheuser-Busch International, Inc., and has served as Chief
Executive Officer since 1999 and as President since 1994.
AUGUST A. BUSCH IV (age 39) is presently Vice President and Group
Executive of the Company and has served in such capacity since 2000. He is
also presently President of the Company's subsidiary, Anheuser-Busch,
Incorporated, and has served in such capacity since 2002 and had previously
served as its Group Vice President-Marketing and Wholesale Operations
(2000-2002) and its Vice President-Marketing (1996-2000).
MARK T. BOBAK (age 44) is presently Vice President-Corporate Human
Resources of the Company and has served in such capacity since 2000. He had
previously served as Vice President and Deputy General Counsel of the
Company (1998-2000).
8
<PAGE>
<PAGE>
JOSEPH P. SELLINGER (age 58) is presently Vice President and Group
Executive of the Company and has served in such capacity since 2000. He is
also presently Chairman, Chief Executive Officer and President of the
Company's direct subsidiaries, Anheuser-Busch Packaging Group, Inc.,
Anheuser-Busch Recycling Corporation, Metal Container Corporation, Eagle
Packaging, Inc., and Precision Printing and Packaging, Inc., and has served
in all such capacities since 2000. He is also Chairman, Chief Executive
Officer and President of the Company's direct subsidiary, Glass Container
Corporation (doing business as Longhorn Glass Corporation), and has served
in such capacities since 2001. He had previously served as Vice
President-Operations of the Company's subsidiary, Anheuser-Busch,
Incorporated (1992-2000).
DOUGLAS J. MUHLEMAN (age 50) is presently Group Vice President-Brewing
Operations and Technology of the Company's subsidiary, Anheuser-Busch,
Incorporated, and has served in such capacity since 2001 and had previously
served as its Vice President-Brewing (1996-2001).
FRANCINE I. KATZ (age 46) is presently Vice President-Corporate
Communications of the Company and has served in such capacity since July
2002. She previously served as its Vice President-Consumer Affairs
(1999-June 2002).
KEITH M. KASEN (age 60) is presently Chairman of the Board and
President of the Company's subsidiary, Busch Entertainment Corporation, and
has served in such capacities since February 2003. During the past five
years, he also served as Executive Vice President and General Manager of
the SeaWorld theme parks in Orlando, Florida (2000-February 2003) and in
San Antonio, Texas (1997-2000).
PART II
The information required by Items 5, 6, 7, and 8 of this Part II are
hereby incorporated by reference from pages 26 through 61 of the Company's
2003 Annual Report to Shareholders.
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
ITEM 6. SELECTED FINANCIAL DATA
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
ITEM 9A. CONTROLS AND PROCEDURES.
It is the responsibility of the chief executive officer and chief
financial officer to ensure the Company maintains disclosure controls and
procedures designed to provide reasonable assurance that material
information, both financial and non-financial, and other information
required under the securities laws to be disclosed is identified and
communicated to senior management on a timely basis. The Company's
disclosure controls and procedures include mandatory communication of
material subsidiary events, automated accounting processing and reporting,
management review of monthly and quarterly results, periodic subsidiary
business reviews, an established system of internal controls and rotating
internal control reviews by the Company's internal auditors.
The chief executive officer and chief financial officer evaluated the
Company's disclosure controls and procedures as of the end of the quarter
ended December 31, 2003 and have concluded that they are effective as of
December 31, 2003 in providing reasonable assurance that such information
is identified and communicated on a timely basis. Additionally, there were
no changes in the Company's internal control over financial reporting
identified in connection with the evaluation that have materially affected,
or are reasonably likely to materially affect, the Company's internal
control over financial reporting.
9
<PAGE>
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
A portion of the information required by this Item with respect to
Directors is hereby incorporated by reference from pages 7 through 9 and
pages 22 and 23 of the Company's Proxy Statement for the Annual Meeting of
Stockholders on April 28, 2004. The information required by this Item with
respect to Executive Officers is presented on pages 8 and 9 of this Form
10-K.
The Company makes available, free of charge, on its website, the
charters of all of the standing committees of its Board of Directors
including those of the Audit, Corporate Governance, and Compensation
committees, the Code of Business Conduct and Ethics for its directors,
officers and employees, and its Corporate Governance Guidelines, and will
furnish copies of these documents to any shareholder upon written request
sent to the Vice President and Corporate Secretary's Office, One Busch
Place, St. Louis, MO 63118.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item is hereby incorporated by
reference from pages 11 and 12 and pages 14 through 21 of the Company's
Proxy Statement for the Annual Meeting of Stockholders on April 28, 2004.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND
RELATED STOCKHOLDER MATTERS
A portion of the information required by this Item pursuant to Item 403
of Regulation S-K is hereby incorporated by reference from pages 10 and 11
of the Company's Proxy Statement for the Annual Meeting of Stockholders on
April 28, 2004.
The following table sets forth the information required pursuant to
Item 201(d) of Regulation S-K, for the Company's equity compensation plans,
the number of outstanding option grants under such plans, the weighted
average exercise price of outstanding options, and the number of shares
remaining available for issuance under such plans, all as of December 31,
2003.
<TABLE>
<CAPTION>
NUMBER OF SHARES OF
COMMON STOCK REMAINING
AVAILABLE FOR FUTURE ISSUANCE
NUMBER OF SHARES OF UNDER EQUITY COMPENSATION
COMMON STOCK TO BE ISSUED WEIGHTED-AVERAGE PLANS (EXCLUDING SHARES TO
UPON EXERCISE OF EXERCISE PRICE OF BE ISSUED UPON EXERCISE OF
PLAN CATEGORY OUTSTANDING OPTIONS OUTSTANDING OPTIONS OUTSTANDING OPTIONS)
------------- ------------------------- ------------------- -----------------------------
<S> <C> <C> <C>
Equity compensation plans
approved by security
holders(1).................. 83,278,069 41.66 15,950,332
Equity compensation plans not
approved by security
holders(2).................. 110,596 46.98 849,112
---------- ----- ----------
Total......................... 83,388,665 41.67 16,799,444
<FN>
- ---------
(1) The 1989 Incentive Stock Plan, the 1998 Incentive Stock
Plan, and the Stock Plan for Non-Employee Directors.
10
<PAGE>
<PAGE>
(2) The Anheuser-Busch Global Employee Stock Plan which
authorizes the Company to issue up to 1,000,000 shares of
common stock to permanent employees of the Company and its
subsidiaries located outside of the United States who elect
to participate. This plan is designed to encourage savings
and ownership of Company shares, and was begun in 1999.
Under the Global Plan, participants elect to have a portion
of their cash compensation withheld in special savings
accounts each payroll period. Each year, generally on March
1, each participant is offered up to 100 shares at the
market price on the offer date. If the market price later
rises above the fixed offer price, the offer may be accepted
for up to three years from the offer date. If accepted,
payment for the shares purchased must come from the
participant's special savings account and no other source. A
participant may sell purchased shares on designated sale
dates. If a participant retains purchased shares in his or
her account for at least two years, the Company awards
additional shares based on the number of retained shares;
the amount of additional shares ranges from 10% to 50%,
depending on the Company's business performance.
Participants generally may elect to reinvest dividends on
purchased shares, but reinvestment shares are not entitled
to additional awards.
</TABLE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this Item is hereby incorporated by
reference from pages 21 and 22 of the Company's Proxy Statement for the
Annual Meeting of Stockholders on April 28, 2004.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
The information required by this Item is hereby incorporated by
reference from page 14 and Appendix C of the Company's Proxy Statement for
the Annual Meeting of Stockholders on April 28, 2004.
11
<PAGE>
<PAGE>
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULE, AND REPORTS ON FORM 8-K
(a) THE FOLLOWING DOCUMENTS ARE FILED AS PART OF THIS REPORT:
<TABLE>
<CAPTION>
1. FINANCIAL STATEMENTS: PAGE
---------
<S> <C> <C>
Consolidated Balance Sheet at December 31, 2003 and 2002 40*
Consolidated Statement of Income for the three years ended
December 31, 2003 41*
Consolidated Statement of Changes in Shareholders Equity for the
three years ended December 31, 2003 42*
Consolidated Statement of Cash Flows for the three years ended
December 31, 2003 43*
Notes to Consolidated Financial Statements and Supplementary
Information 44-56 and
58-61*
Report of Independent Auditors 57*
<FN>
*Incorporated herein by reference from the indicated pages of the 2003
Annual Report to Shareholders.
<CAPTION>
2. FINANCIAL STATEMENT SCHEDULE:
<S> <C> <C>
Report of Independent Auditors on Financial Statement Schedule For the F-1
three years ended December 31, 2003
Schedule II--Valuation and Qualifying Accounts and Reserves F-2
<CAPTION>
3. EXHIBITS:
<S> <C>
Exhibit 3.1 -- Restated Certificate of Incorporation (Incorporated by
reference to Exhibit 3.1 to Form 10-K for the fiscal year
ended December 31, 1999).
Exhibit 3.2 -- By-Laws of the Company (As amended and restated September
24, 2003).
Exhibit 4.1 -- Form of Rights Agreement, dated as of October 26, 1994
between Anheuser-Busch Companies, Inc. and Boatmen's Trust
Company (Incorporated by reference to Exhibit 4.1 to Form
10-K for the fiscal year ended December 31, 1999).
Exhibit 4.2 -- Letter Agreement dated March 19, 1998 between Anheuser-Busch
Companies, Inc., Boatmen's Trust Company, and ChaseMellon
Shareholder Services, L.L.C. amending the Form of Rights
Agreement filed as Exhibit 4.1 of this report.
Exhibit 4.3 -- Indenture dated as of August 1, 1995 between the Company and
The Chase Manhattan Bank, as Trustee (Incorporated by
reference to Exhibit 4.1 in the Form S-3 of the Company,
Registration Statement No. 33-60885).
Exhibit 4.4 -- Indenture dated as of July 1, 2001 between the Company and
The Chase Manhattan Bank, as Trustee (Incorporated by
reference to Exhibit 4.4 to the Form 10-K for the fiscal
year ended December 31, 2002).
Other indentures are not required to be filed, but the
Company agrees to furnish copies of such instruments to the
Securities and Exchange Commission upon request.
12
<PAGE>
<PAGE>
Exhibit 4.5 -- Credit Agreement dated as of August 4, 2003 among the
Company and JP Morgan Chase Bank, as Administrative Agent.
Exhibit 10.1 -- Anheuser-Busch Companies, Inc. Deferred Compensation Plan
for Non-Employee Directors amended and restated as of March
1, 2000 (Incorporated by reference to Exhibit 10.1 to Form
10-K for the fiscal year ended December 31, 1999).*
Exhibit 10.2 -- Anheuser-Busch Companies, Inc. Non-Employee Director
Elective Stock Acquisition Plan amended and restated as of
March 1, 2000 (Incorporated by reference to Exhibit 10.2 to
Form 10-K for the fiscal year ended December 31, 1999).*
Exhibit 10.3 -- Anheuser-Busch Companies, Inc. Stock Plan for Non-Employee
Directors as amended and restated (Incorporated by reference
to Appendix B to the Definitive Proxy Statement for Annual
Meeting of Stockholders on April 23, 2003).*
Exhibit 10.4 -- Anheuser-Busch Companies, Inc. 1989 Incentive Stock Plan (As
amended December 20, 1989, December 19, 1990, December 15,
1993, December 20, 1995, and November 26, 1997)
(Incorporated by reference to Exhibit 10.4 to Form 10-K for
the fiscal year ended December 31, 2002).*
Exhibit 10.5 -- Anheuser-Busch Companies, Inc. 1998 Incentive Stock Plan as
restated (Incorporated by reference to Exhibit 10.5 to Form
10-K for the fiscal year ended December 31, 2002).*
Exhibit 10.6 -- Anheuser-Busch Companies, Inc. Excess Benefit Plan amended
and restated as of March 1, 2000 (Incorporated by reference
to Exhibit 10.9 to Form 10-K for the fiscal year ended
December 31, 1999).*
Exhibit 10.7 -- Anheuser-Busch Global Employee Stock Purchase Plan
(Incorporated by reference to Exhibit 10.7 to Form 10-K for
the fiscal year ended December 31, 2002).*
Exhibit 10.8 -- Anheuser-Busch Companies, Inc. Supplemental Executive
Retirement Plan amended and restated as of March 1, 2003
(Incorporated by reference to Exhibit 10.8 to Form 10-K for
the fiscal year ended December 31, 2002).*
Exhibit 10.9 -- Anheuser-Busch Executive Deferred Compensation Plan amended
and restated as of January 1, 2002 (Incorporated by
reference to Exhibit 10.9 to Form 10-K for the fiscal year
ended December 31, 2002).*
Exhibit 10.10-- Anheuser-Busch 401(k) Restoration Plan amended and restated
as of March 1, 2000 (Incorporated by reference to Exhibit
10.12 to Form 10-K for the fiscal year ended December 31,
1999).*
Exhibit 10.11-- Form of Indemnification Agreement with Directors and
Executive Officers (Incorporated by reference to Exhibit
10.13 to Form 10-K for the fiscal year ended December 31,
1999).*
Exhibit 10.12-- Anheuser-Busch Officer Bonus Plan as amended and restated on
November 24, 1999 (Incorporated by reference to Exhibit A to
the Definitive Proxy Statement for Annual Meeting of
Shareholders on April 26, 2000).*
Exhibit 10.13-- Investment Agreement By and Among Anheuser-Busch Companies,
Inc., Anheuser-Busch International, Inc. and Anheuser-Busch
International Holdings, Inc. and Grupo Modelo, S.A. de C.V.,
Diblo, S.A. de C.V. and certain shareholders thereof, dated
as of June 16, 1993 (Incorporated by reference to Exhibit
10.15 to Form 10-K for the fiscal year ended December 31,
1999).
13
<PAGE>
<PAGE>
Exhibit 10.14-- Letter agreement between Anheuser-Busch Companies, Inc. and
the Controlling Shareholders regarding Section 5.5 of the
Investment Agreement filed as Exhibit 10.12 of this report
(Incorporated by reference to Exhibit 10.15 to Form 10-K for
the fiscal year ended December 31, 1999).
Exhibit 10.15-- Form of Indemnification Agreement between Anheuser-Busch,
Incorporated and certain Executive Officers of the Company
(Incorporated by reference to Exhibit 10.16 to Form 10-K for
the fiscal year ended December 31, 2002).*
Exhibit 12 -- Ratio of Earnings to Fixed Charges.
Exhibit 13 -- Pages 26 through 61 of the Anheuser-Busch Companies, Inc.
2003 Annual Report to Shareholders, a copy of which is
furnished for the information of the Securities and Exchange
Commission. Portions of the Annual Report not incorporated
herein by reference are not deemed "filed" with the
Commission.
Exhibit 14 -- Code of Business Ethics and Conduct
Exhibit 21 -- Subsidiaries of the Company
Exhibit 23 -- Consent of Independent Accountants
Exhibit 24 -- Power of Attorney
Exhibit 31.1 -- Certification of Chief Executive Officer required by Rule
13a-14(e) and 15d-15(e) under the Exchange Act
Exhibit 31.2 -- Certification of Chief Financial Officer required by Rule
13a-14(e) and 15d-15(e) under the Exchange Act
Exhibit 32.1 -- Certification of Chief Executive Officer pursuant to 18
U.S.C. Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
Exhibit 32.2 -- Certification of Chief Financial Officer pursuant to 18
U.S.C. Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
<FN>
- --------
*A management contract or compensatory plan or arrangement required to be
filed by Item 15(c) of this report.
</TABLE>
(b) Reports on Form 8-K
The following Form 8-Ks were filed or furnished during the fourth
quarter of 2003:
ITEM REPORTED DATE OF REPORT
------------- --------------
Item 12 Results of Operations October 22, 2003
and Financial Condition
Item 5 and Other Information and November 5, 2003
Item 7 Financial Statements
and Exhibits
14
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly authorized.
ANHEUSER-BUSCH COMPANIES, INC.
------------------------------------------
(Registrant)
By /s/ W. RANDOLPH BAKER
------------------------------------------
W. Randolph Baker
Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Principal Executive Officer:
Patrick T. Stokes*
President and Chief Executive Officer
Principal Financial Officer:
W. Randolph Baker
Vice President and Chief Financial Officer
Principal Accounting Officer:
John F. Kelly*
Vice President and Controller
/s/ W. RANDOLPH BAKER
--------------------------------------------------
(W. Randolph Baker, as attorney-in-fact and on his
own behalf as Principal Financial Officer)
March 11, 2004
Directors:
- ---------------------------------------------------------------------------
Patrick T. Stokes* Vilma S. Martinez*
August A. Busch III* William Porter Payne*
Carlos Fernandez G.* Joyce M. Roche*
James J. Forese* Henry Hugh Shelton*
John E. Jacob* Andrew C. Taylor*
James R. Jones* Douglas A. Warner III*
Charles F. Knight* Edward E. Whitacre, Jr.*
Vernon R. Loucks, Jr.*
- ---------------------------------------------------------------------------
<FN>
* by power of attorney
15
<PAGE>
<PAGE>
ANHEUSER-BUSCH COMPANIES, INC.
INDEX TO FINANCIAL STATEMENT SCHEDULE
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Auditors on Financial Statement Schedule...... F-1
Financial Statement Schedule for the Years 2003, 2002 and 2001:
Valuation and Qualifying Accounts and Reserves (Schedule II).... F-2
</TABLE>
All other Financial Statement Schedules are omitted because they are
not applicable or the required information is shown in the Consolidated
Financial Statements and Notes.
Separate financial statements of subsidiaries not consolidated have
been omitted because, in the aggregate, the Company's proportionate share
of investees' profit before income taxes is less than 20% of Anheuser-
Busch's consolidated pretax income, and Anheuser-Busch's investments in
such companies are less than 20% of consolidated total assets.
16
<PAGE>
<PAGE>
[PricewaterhouseCoopers logo]
PricewaterhouseCoopers LLP
One Bank of America Plaza
800 Market Street
St. Louis MO 63101-2695
Telephone (314) 206 8500
REPORT OF INDEPENDENT AUDITORS ON FINANCIAL STATEMENT SCHEDULE
To the Board of Directors
of Anheuser-Busch Companies, Inc.
Our audits of the consolidated financial statements referred to in our
report dated February 2, 2004 appearing in the 2003 Annual Report to
Shareholders of Anheuser-Busch Companies, Inc. (which report and
consolidated financial statements are incorporated by reference in this
Annual Report on Form 10-K) also included an audit of the financial
statement schedule listed in Item 15(a)(2) of this Form 10-K. In our
opinion, the financial statement schedule presents fairly, in all material
respects, the information set forth therein when read in conjunction with
the related consolidated financial statements.
/s PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
800 Market Street
St. Louis, MO 63101
February 2, 2004
F-1
<PAGE>
<PAGE>
<TABLE>
ANHEUSER-BUSCH COMPANIES, INC.
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
(IN MILLIONS)
<CAPTION>
2003 2002 2001
---- ---- ----
<S> <C> <C> <C>
Reserve for doubtful accounts (deducted from related
assets):
Balance at beginning of period....................... $ 5.6 $ 7.7 $ 8.2
Additions charged to costs and expenses.............. 1.6 (1.3) .9
Additions (recoveries of uncollectible accounts
previously written off)............................ .2 .2 .1
Deductions (uncollectible accounts written off)...... (.8) (1.0) (1.5)
------ ------ ------
Balance at end of period............................. $ 6.6 $ 5.6 $ 7.7
====== ====== ======
Deferred income tax asset valuation allowance under FAS
109:
Balance at beginning of period....................... $ 10.9 $ 12.0 $ 14.7
Additions to valuation allowance (charged to costs
and expenses)...................................... 14.6 7.7 3.6
Deductions from valuation allowance (utilizations and
expirations)....................................... (5.6) (8.8) (6.3)
------ ------ ------
Balance at end of period............................. $ 19.9 $ 10.9 $ 12.0
====== ====== ======
</TABLE>
F-2
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-3.2
<SEQUENCE>3
<FILENAME>exh3p2.txt
<TEXT>
<PAGE>
Exhibit 3.2
BY-LAWS
OF
ANHEUSER-BUSCH COMPANIES, INC.
(AS AMENDED AND RESTATED SEPTEMBER 24, 2003)
INCORPORATED UNDER THE LAWS OF DELAWARE
<PAGE>
<PAGE>
TABLE OF CONTENTS
BY-LAWS
OF
ANHEUSER-BUSCH COMPANIES, INC.
Page
ARTICLE I:
LOCATION AND OFFICES
Section 1:1 Principal Office.................... 1
Section 1:2 Other Offices....................... 1
ARTICLE II:
STOCKHOLDERS
Section 2:1 Annual Meeting...................... 1
Section 2:2 Business to be Conducted
at Annual Meeting................ 1
Section 2:3 Special Meetings.................... 2
Section 2:4 Place of Meetings................... 2
Section 2:5 Notice of Meetings.................. 2
Section 2:6 Quorum and Voting................... 3
Section 2:7 Voting; Proxy....................... 3
Section 2:8 Voting by Fiduciaries,
Pledgee and Pledgors.............. 3
Section 2:9 Nomination of Directors............. 4
Section 2:10 List of Stockholders................ 5
Section 2:11 Appointment of Inspectors
of Election and Resolution
of Questions Concerning
Right to Vote.................... 5
ARTICLE III:
DIRECTORS
Section 3:1 General Powers...................... 6
Section 3:2 Number and Qualifications........... 6
Section 3:3 Election............................ 6
Section 3:4 Place of Meetings................... 6
Section 3:5 Regular Meetings.................... 7
Section 3:6 Special Meetings.................... 7
Section 3:7 Quorum.............................. 7
Section 3:8 Waiver of Notice.................... 8
Section 3:9 Consent............................. 8
Section 3:10 Notice to Members of the
Board of Directors............... 8
Section 3:11 Presiding Officer................... 8
ARTICLE IV:
COMMITTEES
Section 4:1 Executive Committee -
Appointment and Tenure........... 8
Section 4:2 Executive Committee -
Powers........................... 9
Page
Section 4:3 Executive Committee -
Notice of Meetings............... 9
Section 4:4 Executive Committee -
Quorum and Powers
of Majority...................... 9
Section 4:5 Executive Committee -
Reporting........................ 9
Section 4:6 Other Committees.................... 10
ARTICLE V:
OFFICERS
Section 5:1 Appointment......................... 10
Section 5:2 Tenure.............................. 10
Section 5:3 Chief Executive Officer............. 10
Section 5:4 Chairman of the Board............... 11
Section 5:5 President........................... 11
Section 5:6 Other Officers...................... 11
ARTICLE VI:
CAPITAL STOCK AND DIVIDENDS
Section 6:1 Certificates for Shares............. 11
Section 6:2 Stock Records....................... 11
Section 6:3 Transfers........................... 12
Section 6:4 Regulations Governing Issuance
and Transfers of Shares.......... 12
Section 6:5 Transfer Agents and
Registrars....................... 12
Section 6:6 Lost or Destroyed
Certificates..................... 12
Section 6:7 Fractions of Shares................. 12
Section 6:8 Determination of
Stockholders..................... 13
Section 6:9 Record Date......................... 13
ARTICLE VII:
MISCELLANEOUS
Section 7:1 Voting Shares in Other
Corporations..................... 13
Section 7:2 Execution of Other Papers
and Documents.................... 13
Section 7:3 Corporate Seal...................... 14
Section 7:4 Amendments.......................... 14
Section 7:5 Books and Records................... 14
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BY-LAWS
OF
ANHEUSER-BUSCH COMPANIES, INC.
(AS AMENDED AND RESTATED SEPTEMBER 24, 2003)
ARTICLE I: LOCATION AND OFFICES
PRINCIPAL OFFICE.
SECTION 1:1. The principal office of the corporation shall be at
such place as the Board of Directors may from time to time determine,
but until a change is effected such principal office shall be at One
Busch Place, in the City of St. Louis, Missouri.
OTHER OFFICES.
SECTION 1:2. The corporation may also have other offices, in such
places (within or without the State of Delaware) as the Board of
Directors may from time to time determine.
ARTICLE II: STOCKHOLDERS
ANNUAL MEETING.
SECTION 2:1. An annual meeting of the stockholders of the
corporation shall be held at 10:00 o'clock a.m. on the fourth Wednesday
in April of each year if not a legal holiday, and if a legal holiday
then on the next succeeding day not a legal holiday. The purpose of the
meeting shall be to elect directors and to transact such other business
as properly may be brought before the meeting. If the corporation shall
fail to hold said meeting for the election of directors on the date
aforesaid, the Board of Directors shall cause the election to be held
by the stockholders as soon thereafter as convenient.
BUSINESS TO BE CONDUCTED AT ANNUAL MEETING.
SECTION 2:2.1 At an annual meeting of stockholders, only such
business shall be conducted as shall have been brought before the
meeting (i) pursuant to the corporation's notice of the meeting, (ii)
by or at the direction of the Board of Directors (or any duly organized
committee thereof), or (iii) by any stockholder of the corporation who
is a stockholder of record on the date of giving of the notice provided
for in this By-Law and on the record date for the determination of
stockholders entitled to vote at such meeting and who has complied with
the notice procedures set forth in this By-Law.
SECTION 2:2.2 In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a
stockholder, such stockholder must have given timely notice in proper
written form to the Secretary which notice is not withdrawn by such
stockholder at or prior to such annual meeting.
SECTION 2:2.3 To be timely, a stockholder's notice to the Secretary
must be delivered or mailed to and received by the Secretary at the
principal executive offices of the corporation, not less than ninety
days nor more than one hundred twenty days prior to the first
anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the meeting is changed by more than
thirty days from such anniversary date, notice by the stockholder must
be received not later than the close of business on the tenth day
following the earlier of the day on which notice of the date of the
annual meeting was mailed or public disclosure was made.
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SECTION 2:2.4 To be in proper written form, such stockholder's
notice must set forth as to each matter the stockholder proposes to
bring before the annual meeting (i) a brief description of the business
to be brought before the annual meeting and the reasons for conducting
such business at such meeting; (ii) the name and address, as they
appear on the corporation's books, of the stockholder proposing such
business, and the name and address of the beneficial owner, if any, on
whose behalf the proposal is made; (iii) the class and the number of
shares of the corporation's stock which are beneficially owned by the
stockholder, and the beneficial owner, if any, on whose behalf the
proposal is made; (iv) any material interest of the stockholder, and of
the beneficial owner, if any, on whose behalf the proposal is made, in
such business; and (v) a representation that such stockholder intends
to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
SECTION 2:2.5 Notwithstanding anything in these By-Laws to the
contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this By-Law. The chairman
of the meeting may, if the facts warrant, determine that the business
was not properly brought before the meeting in accordance with the
provisions of this By-Law; and if the chairman should so determine, the
chairman shall so declare to the meeting, and any such business not
properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this By-Law, a stockholder
shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations thereunder with respect to the matters set forth in
this By-Law.
SPECIAL MEETINGS.
SECTION 2:3. At any time the Chief Executive Officer may, and
either the Chief Executive Officer or the Secretary at the written
request of any five members of the Board of Directors shall, issue a
call for a special meeting of the stockholders. Such request shall
state the purpose or purposes of the proposed meeting, and at such
special meeting only such matters as may be specified in the call
therefor shall be considered.
PLACE OF MEETINGS.
SECTION 2:4. All meetings of the stockholders shall be held at the
principal office of the corporation, or at such other place, within or
without the State of Delaware, as may be determined by the Board of
Directors and stated in the notice of the meeting.
NOTICE OF MEETINGS.
SECTION 2:5. Written notice of each meeting of the stockholders
stating the place, date, and hour of the meeting, and, in case of a
special meeting or where otherwise required by statute, the purpose or
purposes for which the meeting is called, shall be delivered by mail
not less than ten nor more than sixty days before the date of the
meeting, by or at the direction of the person calling the meeting, to
each stockholder entitled to vote at such meeting. The notice of a
stockholders' meeting shall be deemed to be delivered when deposited in
the United States mail with postage prepaid, addressed to each
stockholder at such stockholder's address as it appears on the records
of the corporation.
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QUORUM AND VOTING.
SECTION 2:6.1 The holders of a majority of the outstanding shares
(exclusive of treasury stock) entitled to vote at any meeting of the
stockholders, when present in person or by proxy, shall constitute a
quorum for the transaction of business, except as otherwise provided by
statute, the Certificate of Incorporation, or these By-Laws; but in the
absence of such a quorum the holders of a majority of the shares
represented at the meeting shall have the right successively to adjourn
the meeting to a specified date. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting the corporation may
transact any business which might have been transacted at the original
meeting. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
SECTION 2:6.2 The absence from any meeting of the number of shares
required by statute, the Certificate of Incorporation or these By-Laws
for action upon one matter shall not prevent action at such meeting
upon any other matter or matters which may properly come before the
meeting, if the number of shares required in respect of such other
matters shall be present.
SECTION 2:6.3 When a quorum is present at any meeting of the
stockholders, the vote of the holders (present in person or represented
by proxy) of a majority of the shares of stock which are actually voted
(and have the power to vote) on any proposition or question properly
brought to a vote at such meeting shall decide any such proposition or
question, unless the proposition or question is one upon which by
express provision of statute or of the Certificate of Incorporation, or
of these By-Laws, a different vote is required, in which case such
express provision shall govern and establish the number of votes
required to determine such proposition or question.
VOTING; PROXY.
SECTION 2:7.1 Whenever the law requires or the chairman orders that
a vote be taken by ballot, each stockholder entitled to vote on a
particular question at a meeting of stockholders, pursuant to law or
the Certificate of Incorporation, shall be entitled to one vote for
each share of voting stock held by such stockholder. The date for
determining the stockholders entitled to vote at a meeting of the
stockholders shall be determined pursuant to Section 6:9.
SECTION 2:7.2 Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent in writing without a
meeting may authorize another person or persons to act for such
stockholder by proxy; but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer
period. A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A proxy may
be made irrevocable regardless of whether the interest with which it is
coupled is an interest in the stock itself or an interest in the
corporation generally.
VOTING BY FIDUCIARIES, PLEDGEE AND PLEDGORS.
SECTION 2:8. Persons holding stock in a fiduciary capacity shall be
entitled to vote the shares so held. Persons whose stock is pledged
shall be entitled to vote, unless in the transfer by the pledgor on the
books of the corporation the pledgor has expressly empowered the
pledgee to vote thereon, in which case only the pledgee or the
pledgee's proxy may represent such stock and vote thereon.
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If shares or other securities having voting power stand of record
in the names of two or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the entirety
or otherwise, or if two or more persons have the same fiduciary
relationship respecting the same shares, unless the Secretary is given
written notice to the contrary and is furnished with a copy of the
instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting shall have
the following effect:
(a) If only one votes, that person's act binds all;
(b) If more than one vote, the act of the majority so voting
binds all;
(c) If more than one vote, but the vote is evenly split on any
particular matter, each faction may vote the securities in question
proportionally, or any person voting the shares, or a beneficiary, if
any, may apply to the Court of Chancery or such other court as may have
jurisdiction to appoint an additional person to act with the persons so
voting the shares, which shall then be voted as determined by a
majority of such persons and the person appointed by the Court. If the
instrument so filed shows that any such tenancy is held in unequal
interest, a majority or even-split for the purpose of this subsection
shall be a majority or even-split in interest.
NOMINATION OF DIRECTORS.
SECTION 2:9.1 Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors of the
corporation, except as may be otherwise provided in the Certificate of
Incorporation of the corporation with respect to the right of holders
of preferred stock of the corporation to nominate and elect a specified
number of directors in certain circumstances. Nominations of persons
for election to the Board of Directors may be made at any annual
meeting of stockholders, or at any special meeting of stockholders
called for the purpose of electing directors, (i) by or at the
direction of the Board of Directors (or any duly authorized committee
thereof) or (ii) by any stockholder of the corporation who is a
stockholder of record on the date of the giving of the notice provided
for in this By-Law and on the record date for the determination of
stockholders entitled to vote at such meeting and who complies with the
notice procedures set forth in this By-Law.
SECTION 2:9.2 In addition to any other applicable requirements, for
a nomination to be made by a stockholder, such stockholder must have
given timely notice thereof in proper written form to the Secretary of
the corporation.
SECTION 2:9.3 To be timely, a stockholder's notice to the Secretary
must be delivered or mailed to and received by the Secretary at the
principal executive offices of the corporation (i) in the case of an
annual meeting, not less than ninety days nor more than one hundred
twenty days prior to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that in the event
that the annual meeting is called for a date that is not within thirty
days before or after such anniversary date, notice by the stockholder
in order to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure of the
date of the annual meeting was made, whichever occurs first, and (ii)
in the case of a special meeting of stockholders called for the purpose
of electing directors, not later than the close of business on the
tenth day following the day on which notice of the date of the special
meeting was mailed or public disclosure of the date of the special
meeting was made, whichever occurs first.
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SECTION 2:9.4 To be in proper written form, a stockholder's notice
to the Secretary must set forth (i) as to each person whom the
stockholder proposes to nominate for election as a director (A) the
name, age, business address and residence address of the person, (B)
the principal occupation or employment of the person, (C) the class or
series and the number of shares of capital stock of the corporation
which are owned beneficially or of record by the person and (D) any
other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act, and the rules and
regulations promulgated thereunder; and (ii) as to the stockholder
giving the notice or the beneficial owner on whose behalf the
nomination is made, (A) the name and address of such stockholder as
they appear on the corporation's books, (B) the class or series and the
number of shares of capital stock of the corporation beneficially owned
by such stockholder or beneficial owner, (C) a description of all
arrangements or understandings between such stockholder or beneficial
owner and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are to be
made by such stockholder or beneficial owner, (D) a representation that
such stockholder or beneficial owner intends to appear in person or by
proxy at the meeting to nominate the persons named in its notice and
(E) any other information relating to such stockholder or beneficial
owner that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of
proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder. Such
notice must be accompanied by a written consent of each proposed
nominee to being named as a nominee and to serve as a director if
elected.
SECTION 2:9.5 No person shall be eligible for election as a
director of the corporation, at any annual meeting of stockholders or
at any special meeting of stockholders called for the purpose of
electing directors, unless nominated in accordance with the procedures
set forth in this By-Law. If the chairman of the meeting determines
that a nomination was not made in accordance with the foregoing
procedures, the chairman shall declare to the meeting that the
nomination was defective and such defective nomination shall be
disregarded.
LIST OF STOCKHOLDERS.
SECTION 2:10. The Secretary shall prepare and make, or cause to be
made, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at said meeting,
arranged in alphabetical order, showing the address of and the number
of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at
least ten days prior to the election, either at a place within the city
where the election is to be held and which place shall be specified in
the notice of the meeting, or, if not so specified, at the place where
said meeting is to be held, and the list shall be produced and kept at
the time and place of election during the whole time thereof and
subject to the inspection of any stockholder who may be present. The
stock ledger shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list required by this By-Law
or the books of the corporation, or to vote in person or by proxy at
any meeting of the stockholders.
APPOINTMENT OF INSPECTORS OF ELECTION AND RESOLUTION OF QUESTIONS
CONCERNING RIGHT TO VOTE.
SECTION 2:11. The Board of Directors, in advance of the meeting of
stockholders or, if it does not act, the chairman of the meeting, shall
appoint not less than two persons who are not directors to serve as
inspectors of election. It shall be their duty to receive and canvass
the votes for election of directors and on any proposal voted on by
ballot and to certify the results to the chairman. In all cases where
the right to vote upon any share of the corporation shall be
questioned, it shall be the duty of the inspectors to examine the stock
ledger of the corporation as evidence of the shares held, and all
shares that appear
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standing thereon in the name of any person or persons may be voted upon by
such person or persons. Each inspector of election before entering upon the
duties of such office shall take and subscribe the following oath before an
officer authorized by law to administer oaths: "I do solemnly swear that I
will execute the duties of an inspector of the election now to be held with
strict impartiality and according to the best of my ability."
ARTICLE III: DIRECTORS
GENERAL POWERS.
SECTION 3:1. The Board of Directors shall control and manage the
business and property of the corporation. The Board may exercise all
such powers of the corporation and do all lawful acts and things as are
not by law, the Certificate of Incorporation, or these By-Laws directed
or required to be exercised or done by the stockholders or some
particular officer of the corporation.
NUMBER AND QUALIFICATIONS.
SECTION 3:2. The number of directors shall be determined from time
to time by resolution of the Board of Directors in accordance with the
terms of Article FIFTH of the Certificate of Incorporation. From and
after the first public distribution of the Common Stock of the
corporation, each director shall be a stockholder of the corporation,
except in such specific case or cases as shall be otherwise authorized
by the Board of Directors upon a showing of reasonable cause therefor.
ELECTION.
SECTION 3:3. The directors who are to be elected at the annual
meeting of the stockholders shall be elected by ballot by the holders
of shares entitled to vote.
PLACE OF MEETINGS.
SECTION 3:4. The place where meetings of the Board of Directors are
shall be as follows:
(a) The annual meeting shall be held in the city of the
principal office of the corporation in Missouri, provided that in
the event the annual meeting of shareholders is held in a
metropolitan area other than St. Louis, Missouri, the annual
meeting of the Board of Directors shall be held in the metropolitan
area where the annual meeting of stockholders is held.
(b) Regular meetings shall be held at such place within
the City or County of St. Louis, Missouri as may be prescribed in
the call, provided that any regular meeting may be held elsewhere,
either within or without the State of Delaware, pursuant to
resolution of the Board of Directors or pursuant to the call of the
Chief Executive Officer acting with the consent of a majority of
the directors.
(c) Special meetings shall be held at such place as may be
prescribed in the notice, provided that if a special meeting is
held on less than three days' notice, it shall be held at the
principal office of the corporation unless all directors agree upon
a different location.
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(d) Members of the Board of Directors may participate in a
meeting of the Board by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and participating
in the meeting in this manner shall constitute presence in person
at such meeting.
REGULAR MEETINGS.
SECTION 3:5. Regular meetings shall be held at such place or
places, on such date or dates, and at such times as shall be
established by the Board of Directors. A notice of each regular meeting
shall not be required, except any meeting at which an amendment to or
repeal of these By-Laws is to be considered.
SPECIAL MEETINGS.
SECTION 3:6. Special meetings of the Board of Directors may be held
at the call of the Chief Executive Officer or five members of the Board
at such time as may be prescribed in the call of the meeting. The
purpose of the special meeting need not be stated in the notice of the
meeting. Notice of a special meeting may be given by any one or more of
the following methods and the method used need not be the same for each
director being notified:
(a) Written notice sent by mail at least three days prior to
the meeting;
(b) Personal service at least twenty-four (24) hours prior to the
date of the meeting;
(c) Telegraphic notice at least twenty-four (24) hours prior to the
date of the meeting, said notice to be sent as a straight full-rate
telegram;
(d) Telephonic notice at least twenty-four (24) hours prior to the
date of the meeting.
(e) Facsimile transmission at least twenty-four (24) hours prior to
the date of the meeting.
QUORUM.
SECTION 3:7. A majority of the persons serving as directors of the
corporation at the time of a meeting of the Board of Directors shall
constitute a quorum for the transaction of any business by the Board at
such meeting. At any meeting of the Board, no action shall be taken
(except adjournment, in the manner provided below) until after a quorum
has been established.
The act of a majority of directors who are present at a meeting at
which a quorum previously has been established (or at any adjournment
of such meeting, provided that a quorum previously shall have been
established at such adjourned meeting) shall be the act of the Board of
Directors, regardless of whether or not a quorum is present at the time
such action is taken. In determining the number of directors who are
present at the time any such action is taken (for the purpose of
establishing the number of votes required to take action on any
proposition or question submitted to the Board), any director who is in
attendance at such meeting but who, for just cause, is disqualified to
vote on such proposition or question, shall not be considered as being
present at the time of such action.
In the event a quorum cannot be established at the beginning of a
meeting, a majority of the directors present at the meeting, or the
director, if there be only one person, or the Secretary of the
corporation, if there be no director present, may adjourn the meeting
from time to time until a quorum be present. Only such notice of such
adjournment need be given as the Board may from time to time prescribe.
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WAIVER OF NOTICE.
SECTION 3:8. Any notice which is required by law or by the
Certificate of Incorporation or by these By-Laws to be given to any
director may be waived in writing, signed by such director, whether
before or after the time stated therein. Attendance of a director at
any meeting shall constitute waiver of notice of such meeting, except
where a director attends a meeting for the express purpose of objecting
to the transaction of any business because the meeting is not lawfully
called or convened.
CONSENT.
SECTION 3:9. Any action required or permitted to be taken at any
meeting of the Board of Directors (or of any committee thereof) may be
taken without a meeting if all members of the Board (or committee)
consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of the Board (or committee).
NOTICE TO MEMBERS OF THE BOARD OF DIRECTORS.
SECTION 3:10. Each member of the Board of Directors shall file with
the Secretary of the corporation an address to which mail or
telegraphic notices shall be sent and a telephone number to which a
telephonic or facsimile notice may be transmitted. A notice mailed,
telegraphed, telephoned or transmitted by facsimile in accordance with
the instructions provided by the director shall be deemed sufficient
notice. Such address or telephone number may be changed at any time and
from time to time by a director by giving written notice of such change
to the Secretary. Failure on the part of any director to keep an
address and telephone number on file with the Secretary shall
automatically constitute a waiver of notice of any regular or special
meeting of the Board which might be held during the period of time that
such address and telephone number are not on file with the Secretary. A
notice shall be deemed to be mailed when deposited in the United States
mail, postage prepaid. A notice shall be deemed to be telegraphed when
the notice is delivered to the transmitter of the telegram and either
payment or provision for payment is made by the corporation. Notice
shall be deemed to be given by telephone if the notice is transmitted
over the telephone to some person (whether or not such person is the
director) answering the telephone at the number which the director has
placed on file with the Secretary. Notice shall be deemed to be given
by facsimile transmission when sent to the telephone number which the
director has placed on file with the Secretary.
PRESIDING OFFICER.
SECTION 3:11. The Chairman of the Board shall preside at all
meetings of the Board of Directors at which the Chairman is present. In
the Chairman's absence, the Vice Chairman (if any) shall preside. In
the absence of the Chairman and the Vice Chairman, the Board shall
select a chairman of the meeting from among the directors present.
ARTICLE IV: COMMITTEES
EXECUTIVE COMMITTEE--APPOINTMENT AND TENURE.
SECTION 4:1. The Board of Directors, by resolution adopted by a
majority of the whole Board, may designate three or more directors,
including the Chief Executive Officer, to constitute an Executive
Committee, provided that a majority of said committee shall at all
times be made up of members of the Board who are neither officers nor
employees of the corporation and who shall serve at the pleasure of the
Board. In the case of the death, resignation or removal of any member
of the Executive Committee or
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in case any such member shall cease to be a member of the Board, the vacancy
shall be filled by the Board. The Board shall designate the chairman of the
Executive Committee.
EXECUTIVE COMMITTEE--POWERS.
SECTION 4:2. The Executive Committee, to the extent provided in the
resolution of the Board of Directors appointing such committee or in
any subsequent resolution, shall have and may exercise all the powers
and authority of the Board in the management of the business and
affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it, but shall
not have the power or authority with respect to amending the
Certificate of Incorporation, adopting an agreement of merger or
consolidation, or recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and
assets; nor shall the Executive Committee have the power or authority
to declare a dividend or to authorize the issuance of stock; but the
designation of such Executive Committee and the delegation of authority
thereto shall not operate to relieve the Board, or any member thereof,
of any responsibility imposed upon it or them by the provisions of the
Delaware General Corporation Law, as amended.
EXECUTIVE COMMITTEE--NOTICE OF MEETINGS.
SECTION 4:3. A meeting of the Executive Committee may be held on
call by the Chief Executive Officer or on the call of any three of the
other members of the Committee. Meetings of the Executive Committee may
be held, upon notice as short as twenty-four (24) hours, at such place
or places as shall be determined by resolution of the Committee, or in
the absence of a resolution of the Executive Committee with respect
thereto, at such place or places as may be determined by the Chief
Executive Officer. If notice is given at least three days prior to the
meeting of the Committee, notice may be given in any of the ways set
forth in Section 3:6, dealing with special meetings of the Board of
Directors. If less than three days' notice is given, notice shall not
be given by mail but shall be given by one of the other methods
described in Section 3:6. With respect to any such notice, all the
provisions of Section 3:10 shall be equally applicable in the case of
notice of an Executive Committee meeting as they are in the case of a
notice of a meeting of the Board of Directors. Meetings of the
Executive Committee shall be held at such place either within or
without the States of Missouri or Delaware as may be designated by a
resolution of the Board; or in the absence of such resolution, at such
place within the metropolitan St. Louis, Missouri area as may be
designated in the notice. Any such notice may be waived in the same
manner provided in Section 3:8 with respect to waiver of notice of a
directors' meeting.
EXECUTIVE COMMITTEE--QUORUM AND POWERS OF MAJORITY.
SECTION 4:4. A majority of the members of the Executive Committee
shall constitute a quorum for the transaction of business at any
meeting of the Executive Committee. Unless otherwise provided by the
Board of Directors, a majority of the members of the Executive
Committee shall constitute a quorum, and the acts of a majority of the
members present at a meeting at which a quorum is present shall be the
acts of the Executive Committee.
EXECUTIVE COMMITTEE--REPORTING.
SECTION 4:5. At each regular meeting of the Board of Directors all
actions taken by the Executive Committee since the last prior meeting
of the Board shall be reported, and the Board shall take such action to
approve or rescind such action of the Executive Committee as the Board
may deem appropriate, but no rescission of such action shall affect any
rights which have attached pursuant to such Executive Committee action.
9
<PAGE>
<PAGE>
If no regular meeting of the Board is scheduled within seven days
after the date of a meeting of the Executive Committee, then no later
than five days after such meeting of the Executive Committee, the
minutes thereof (even though they may not as yet have been approved by
the Executive Committee) shall be deposited in the mail by the
Secretary addressed to each member of the Board at the address on file
with the Secretary pursuant to the provisions of Section 3:10, provided
that if any member of the Board shall have failed to place an address
on file with the Secretary, such member shall be deemed to have waived
the right to receive a copy of the minutes of the Executive Committee
meeting.
OTHER COMMITTEES.
SECTION 4:6. Other Committees may be established, and their members
appointed, from time to time by the Board of Directors. Such other
committees shall have such purpose(s) and such power(s) as the Board by
resolution may confer. Unless otherwise provided by the Board, a
majority of the members of such other Committee shall constitute a
quorum, and the acts of a majority of the members present at a meeting
at which a quorum is present shall be the act of such other Committee.
ARTICLE V: OFFICERS
APPOINTMENT.
SECTION 5:1. The Board of Directors shall appoint from its
membership a Chairman of the Board and a President. The Board shall
appoint such number of Vice Presidents as the Board may from time to
time determine, a Controller, a Secretary, a Treasurer, one or more
Assistant Controllers, one or more Assistant Secretaries, one or more
Assistant Treasurers and such other officers, as the Board may from
time to time deem necessary or appropriate. The Board of Directors may
appoint a Vice Chairman of the Board, but the person holding that
position shall not be considered an officer of the corporation.
TENURE.
SECTION 5:2. Officers appointed by the Board of Directors shall
hold their respective offices for the term of one year and until their
respective successors shall have been duly appointed and qualified;
provided, however, that any officer appointed by the Board may be
removed by the Board with or without a hearing and with or without
cause whenever in its judgment the best interests of the corporation
will be served thereby.
CHIEF EXECUTIVE OFFICER.
SECTION 5:3. So long as the offices of Chairman of the Board and
President are held by the same person, that person shall be the Chief
Executive Officer of the corporation. Otherwise, the Chief Executive
Officer shall be the Chairman of the Board or the President, as
designated by the Board of Directors. The Chief Executive Officer shall
have general supervision and control over all the business and property
of the corporation and shall be responsible at all times to the Board
of Directors and the Executive Committee. The Chief Executive Officer
shall also preside at all meetings of the stockholders. In the event
the Chief Executive Officer shall fail or for any reason be unable to
serve as such, the Board of Directors shall promptly act to fill such
vacancy.
10
<PAGE>
<PAGE>
CHAIRMAN OF THE BOARD.
SECTION 5:4. The Chairman of the Board shall preside as chairman of
all meetings of the Board of Directors at which the Chairman shall be
present and shall have such other powers, responsibilities and duties
as shall be assigned by the Board.
PRESIDENT.
SECTION 5:5. The President shall have such powers, responsibilities
and duties as shall be assigned by the Board of Directors.
OTHER OFFICERS.
SECTION 5:6. Subject to the ultimate authority of the Board of
Directors, all other officers of the corporation shall have such
powers, responsibilities and duties as shall be assigned to them from
time to time by the Chief Executive Officer.
ARTICLE VI: CAPITAL STOCK AND DIVIDENDS
CERTIFICATES FOR SHARES.
SECTION 6:1. Certificates for shares of the capital stock of the
Company shall be in such form, not inconsistent with the Certificate of
Incorporation, as shall be approved by the Board of Directors, and
shall be signed by the Chairman or Vice Chairman of the Board of
Directors or by the President or a Vice-President, and by the Secretary
or an Assistant Secretary, or the Treasurer or an Assistant Treasurer,
provided that the signatures of any such officers thereon may be
facsimiles. The seal of the corporation shall be impressed, by original
or by facsimile, printed or engraved, on all such certificates. The
certificate shall also be signed by the transfer agent and a registrar
and the signature of either the transfer agent or the registrar may
also be facsimile, engraved or printed. In case any officer, transfer
agent, or registrar who has signed or whose facsimile signature has
been placed upon any such certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued,
such certificate may nevertheless be issued by the corporation with the
same effect as if such officer, transfer agent, or registrar had not
ceased to be such officer, transfer agent, or registrar at the date of
its issue.
STOCK RECORDS.
SECTION 6:2. The corporation shall keep at its principal office
stock books in which shall be recorded the number of shares issued, the
names of the owners of the shares, the number owned by them
respectively, and the transfer of such shares with the date of
transfer.
11
<PAGE>
<PAGE>
TRANSFERS.
SECTION 6:3. Certificates representing shares of stock of the
corporation shall be transferable only on the books of the corporation
by the person or persons named in the certificate or by the attorney
lawfully constituted in writing representing such person or persons and
upon surrender of the certificate or certificates being transferred
which certificate shall be properly endorsed for transfer or
accompanied by a duly executed stock power. Whenever a certificate is
endorsed by or accompanied by a stock power executed by someone other
than the person or persons named in the certificate, evidence of
authority to transfer shall also be submitted with the certificate. All
certificates surrendered to the corporation for transfer shall be
cancelled.
REGULATIONS GOVERNING ISSUANCE AND TRANSFERS OF SHARES.
SECTION 6:4. The Board of Directors shall have the power and
authority to make all such rules and regulations as it shall deem
expedient concerning the issue, transfer and registration of
certificates for shares of stock of the corporation.
TRANSFER AGENTS AND REGISTRARS.
SECTION 6:5. Transfer agents and registrars for the corporation's
stock shall be banks, trust companies or other financial institutions
located within or without the State of Delaware as shall be appointed
by the Board of Directors. The Board shall also define the authority of
such transfer agents and registrars.
LOST OR DESTROYED CERTIFICATES.
SECTION 6:6. Where a certificate for shares of the corporation has
been lost or destroyed, the Board of Directors may authorize the
issuance of a new certificate in lieu thereof upon satisfactory proof
of such loss or destruction, and upon the giving of an open penalty
bond with surety satisfactory to the corporation's General Counsel and
Treasurer, to protect the corporation or any person injured by the
issuance of the new certificate from any liability or expense which it
or they may incur by reason of the original certificate's remaining
outstanding, and upon payment of the corporation's reasonable costs
incident thereto.
FRACTIONS OF SHARES.
SECTION 6:7. The corporation shall not issue fractions of a share.
It shall, however, (1) arrange for the disposition of fractional
interests by those entitled thereto, and (2) pay in cash the fair value
of fractions of a share as of the time when those entitled to receive
such fractions are determined, or (3) issue scrip or warrants in
registered or bearer form which shall entitle the holder to receive a
certificate for a full share upon the surrender of such scrip or
warrants aggregating a full share. Scrip or warrants shall not, unless
otherwise provided therein, entitle the holder to exercise voting
rights, to receive dividends thereon, or to participate in any of the
assets of the corporation in the event of liquidation. The Board of
Directors may cause scrip or warrants to be issued subject to the
conditions that the shares for which scrip or warrants are exchangeable
may be sold by the corporation and the proceeds thereof distributed to
the holders of scrip or warrants, or subject to any other conditions
which the Board may impose.
12
<PAGE>
<PAGE>
DETERMINATION OF STOCKHOLDERS.
SECTION 6:8. The corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact
thereof, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof,
save as expressly provided by the laws of the State of Delaware.
RECORD DATE.
SECTION 6:9. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent in
writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment or any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be more
than sixty nor less than ten days before the date of such meeting, nor
more than sixty days prior to any other action. If no record date is
fixed:
(1) The record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be
at the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close
of business on the day next preceding the day on which the
meeting is held.
(2) The record date for determining stockholders for any
other purpose shall be at the close of business on the day on
which the Board adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board may fix a new record
date for the adjourned meeting.
ARTICLE VII: MISCELLANEOUS
VOTING SHARES IN OTHER CORPORATIONS.
SECTION 7:1. The corporation may vote any and all shares of stock
and other securities having voting rights which may at any time and
from time to time be held by it in any other corporation or
corporations and such vote may be cast either in person or by proxy by
such officer of the corporation as the Board of Directors may appoint
or, in default of such appointment, the Chief Executive Officer, the
President or a Vice President.
EXECUTION OF OTHER PAPERS AND DOCUMENTS.
SECTION 7:2. All checks, bills, notes, drafts, vouchers, warehouse
receipts, bonds, mortgages, contracts, registration certificates and
all other papers and documents of the corporation shall be signed or
endorsed for the corporation by such of its officers, other employees
and agents as the Board of Directors may from time to time determine,
or in the absence of such determination, by the Chief Executive
Officer, the President or a Vice President, provided that instruments
requiring execution with the formality of deeds shall be signed by the
Chief Executive Officer, the President or a Vice President and
impressed with the Seal of the corporation, duly attested by the
Secretary or an Assistant Secretary.
13
<PAGE>
<PAGE>
CORPORATE SEAL.
SECTION 7:3. The Board of Directors shall provide a suitable seal,
containing the name of the corporation, which seal shall be in the
custody of the Secretary of the corporation, and may provide for one or
more duplicates thereof to be kept in the custody of such other officer
of the corporation as the Board may prescribe.
AMENDMENTS.
SECTION 7:4. These By-Laws may be amended or repealed, or new
By-Laws may be adopted (a) by the affirmative vote of a majority of the
shares issued and outstanding and entitled to vote at any annual or
special meeting of stockholders, or (b) by the affirmative vote of the
majority of the Board of Directors at any regular or special meeting;
provided that the notice of such meeting of stockholders or directors,
whether regular or special, shall specify as one of the purposes
thereof the making of such amendment or repeal, and provided further
that any amendment of the By-Laws made by the Board may be further
amended or repealed by the stockholders.
BOOKS AND RECORDS.
SECTION 7:5. Except as the Board of Directors may from time to time
direct or as may be required by law, the corporation shall keep its
books and records at its principal office.
14
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4.2
<SEQUENCE>4
<FILENAME>exh4p2.txt
<TEXT>
<PAGE>
Exhibit 4.2
March 19, 1998
Boatmen's Trust Company, as Rights Agent
510 Locust Street
St. Louis, Missouri 63101
ChaseMellon Shareholder Services, L.L.C. as Successor Rights Agent,
200 North Broadway, Suite 1722
St. Louis, Missouri 63102
Re: Successor Rights Agent
Ladies and Gentlemen:
Pursuant to Section 21 of the Rights Agreement by and between Anheuser-Busch
Companies, Inc. and Boatmen's Trust Company dated October 26, 1994 (the
"Agreement") by execution and delivery of this letter agreement, Boatmen's
Trust Company hereby resigns as Rights Agent under the Agreement,
ChaseMellon Shareholder Services, L.L.C. (the "Successor Agent") is hereby
appointed successor rights agent under the Agreement and the Successor
Agent hereby accepts such appointment.
Furthermore, the Agreement is amended as follows:
(a) Section 2 hereby modified and amended by deleting: "as agent for the
Company and the holders of the Rights (who, in accordance with Section
3 hereof, shall prior to the Distribution Date also be the holders of
the Common Stock)" and replacing it with: "as rights agent hereunder."
(b) The second sentence in Section 3(b) is hereby modified and amended by
deleting: "and shall bear the following legend" and replacing it with:
"and shall bear a legend substantially to the following effect."
(c) Section 21 of the Rights Agreement is hereby modified and amended by
deleting the fifth sentence in its entirety and replacing it with:
"Any successor Rights Agent, whether appointed by the Company or by
such a court, shall be either (a) a corporation organized and doing
business under the laws of the United States or of any state of the
United States, in good standing, which is authorized under such laws
to exercise corporate trust powers and is subject to supervision or
examination by federal or state authority and which has at the time of
its appointment as Rights Agent a combined capital and surplus of at
least $100,000,000 or (b) an Affiliate of such a corporation."
(d) All provisions of the Agreement not amended hereby shall remain in full
force and effect.
(e) This letter agreement shall be deemed to be a contract made
<PAGE>
<PAGE>
under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State
applicable to contracts made and to be performed entirely within such
State.
(f) This letter agreement may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together constitute but
one and the same instrument.
In executing this letter agreement, the Successor Agent shall be entitled to
all the privileges and immunities afforded to the Rights Agent and assumes
all obligations of the Rights Agent under the terms and conditions of the
Agreement.
ANHEUSER-BUSCH COMPANIES, INC.
By: /s/ Stephen K. Lambright
------------------------------------
Title: Group Vice President and General
Counsel
BOATMEN'S TRUST COMPANY,
as Rights Agent
By: /s/ Jerry L. Rector
--------------------------------------
Title: Vice President
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.,
as Successor Rights Agent
By: /s/ H. Eugene Bradford
--------------------------------------
Title: Vice President
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4.5
<SEQUENCE>5
<FILENAME>exh4p5.txt
<TEXT>
<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>
<PAGE>
<TABLE>
TABLE OF CONTENTS*
<CAPTION>
Page
----
<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>
<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>
<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>
<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>
<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>
<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>
<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>
<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>
<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>
<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>
<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>
<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>
<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>
<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>
<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>
<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>
<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
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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
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<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
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<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
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<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
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<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
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<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
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<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
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<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
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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
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(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
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<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
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<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
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<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
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<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
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<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
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<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
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<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 of extensions of credit or
other assets which includes loans by a non-United States office of such a
bank to United States residents). The Adjusted LIBO Rate shall be adjusted
automatically on and as of the effective date of each change in the
Euro-Dollar Reserve Percentage.
(d) Any overdue principal of or overdue interest on any
Euro-Dollar Loan shall bear interest, payable on demand, for each day until
paid, at a rate per annum equal to (i) the sum of 1% plus the rate otherwise
----
applicable to such Euro-Dollar Loan or (ii) if the circumstances described
in subsection (a) or (b) of Section 8.01 shall exist, the sum of 1% plus the
----
rate applicable to Base Rate Loans for such day.
(e) Subject to Section 8.01(a), each Money Market LIBOR
Loan shall bear interest on the outstanding principal amount thereof, for
the Interest Period applicable thereto, at a rate per annum equal to the sum
of the LIBO Rate for such Interest Period (determined in accordance with
Section 2.10(c) as if the related Money Market LIBOR Borrowing were a
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
---- -----
Bank making such Loan in accordance with Section 2.04. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the Money Market Absolute Rate quoted by the Bank making such Loan
in accordance with Section 2.04. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is
longer than three months, at intervals of three months after the first day
thereof and, in the case of any prepayment, as specified in Section 2.13.
Any overdue principal of or overdue interest on any Money Market Loan shall
bear interest, payable on demand, for each day until paid at a rate per
annum equal to the sum of 1% plus the rate applicable to Base Rate Loans for
----
such day.
(f) Each Swingline 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
30
<PAGE>
<PAGE>
the last day thereof and, in the case of any prepayment, as specified in
Section 2.13. Any overdue principal of and overdue interest on any Swingline
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 otherwise applicable to
----
Base Rate Loans for such day.
(g) The Administrative Agent shall determine each interest
rate applicable to the Loans hereunder (other than interest rates applicable
to Negotiated Rate Loans). The Administrative Agent shall give prompt notice
to the Company and the participating Banks by telecopier of each interest
rate so determined, and its determination thereof shall be conclusive in the
absence of manifest error. If the Company is not the Borrower of the
applicable Loan for which such interest rate is so determined, the Company
will be responsible for notifying the applicable Borrower of such interest
rate.
(h) Each Reference Bank agrees to use its best efforts to
furnish quotations to the Administrative Agent as contemplated hereby. If
any Reference Bank does not furnish a timely quotation, the Administrative
Agent shall determine the relevant interest rate on the basis of the
quotation or quotations furnished by the remaining Reference Bank or
Reference Banks or, if none of such quotations is available on a timely
basis, the provisions of Section 8.01 shall apply.
Section 2.11. Fees. (a) Facility Fees. The Company shall
---- -------------
pay to the Administrative Agent, for the account of each Bank, facility fees
for each day during the Revolving Credit Period, at a rate equal to (a) if
such day falls within a Level I Pricing Period, 0.060% per annum or (b) if
such day falls within a Level II Pricing Period, 0.125% per annum, in each
case of such Bank's Commitment (whether used or unused) for such day. Such
facility fees shall be payable quarterly in arrears on each March 31, June
30, September 30 and December 31 and on the Termination Date.
(b) Letter of Credit Fee. The Company shall pay to the
--------------------
Administrative Agent, for the account of each Bank, a letter of credit fee
for each day during the Revolving Credit Period, at a rate equal to (a) if
such day falls within a Level I Pricing Period, 0.190% per annum or (b) if
such day falls within a Level II Pricing Period, 0.325% per annum, in each
case of such Bank's LC Exposure (excluding any portion thereof attributable
to unreimbursed LC Disbursements) for such day. Such letter of credit fees
shall be payable quarterly in arrears on each March 31, June 30, September
30 and December 31 and on the Termination Date.
Section 2.12. Termination and Reduction of Commitments.
----------------------------------------
(a) The Company may, upon at least three Domestic Business Days' notice to
the Administrative Agent, terminate entirely at any time, or reduce from
time to time by an aggregate amount of $25,000,000 or any larger multiple of
$5,000,000, the Total Commitment in excess of the sum of the outstanding
aggregate principal amount of the Loans plus the total LC Exposure. Each
----
reduction of the Total Commitment shall reduce the unused Commitments of the
Banks in proportion to their respective Commitments and shall be permanent.
If the Total Commitment is terminated in its entirety, all accrued facility
fees shall be payable on the effective date of such termination.
31
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<PAGE>
(b) The Total Commitment (unless already terminated
pursuant to subsection (a) of this Section) shall terminate on the
Termination Date, and any Loans then outstanding (together with accrued
interest thereon) shall be due and payable on such date.
Section 2.13. Optional Prepayments. (a) Any Borrower may,
--------------------
upon notice by the Company (on behalf of such Borrower) to the
Administrative Agent received by the Administrative Agent not later than
10:00 A.M. (New York City time) on the Domestic Business Day prior to the
date of prepayment, prepay, without penalty or premium, any Base Rate
Borrowing or Swingline Borrowing (or any Money Market Borrowing bearing
interest at the Base Rate pursuant to Section 8.01(a)) in whole at any time,
or from time to time in part in principal amounts aggregating $10,000,000 or
any larger multiple of $1,000,000, by paying the principal amount to be
prepaid together with accrued interest on such prepaid amounts to the date
of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Banks included in such Borrowing.
(b) Subject to Section 2.15, any Borrower may upon at
least three Euro-Dollar Business Days' notice by the Company (on behalf of
such Borrower) to the Administrative Agent, prepay any CD Borrowing or
Euro-Dollar Borrowing in whole at any time, or from time to time in part in
principal amounts aggregating $10,000,000 or any larger multiple of
$1,000,000, by paying the principal amount to be prepaid together with
accrued interest on such prepaid amounts to the date of prepayment. Each
such optional prepayment shall be applied to prepay ratably the Loans of the
several Banks included in such Borrowing.
(c) Each such notice of prepayment shall specify which
outstanding Borrowing (or portion thereof) is to be prepaid in connection
therewith. Upon receipt of a notice of prepayment pursuant to this Section,
the Administrative Agent shall promptly notify each Bank of the contents
thereof and of such Bank's ratable share of such prepayment, and such notice
shall not thereafter be revocable by the Company or the applicable Borrower.
(d) Money Market Loans (except such as bear interest at
the Base Rate pursuant to Section 8.01(a)) and Negotiated Rate Loans of any
Bank may not be prepaid without the consent of such Bank.
Section 2.14. General Provisions as to Payments. (a) Each
---------------------------------
Borrower shall make each payment of principal of, and interest on, its
Syndicated Loans, Swingline Loans and Money Market Loans and the Company
shall make each payment of facility and letter of credit fees and all other
amounts payable hereunder (other than payments of principal of and interest
on Negotiated Rate Loans and reimbursement of LC Disbursements), not later
than 11:00 A.M. (New York City time) on the date when due, in U.S. Dollars
immediately available in New York City, to the Administrative Agent at its
address referred to in Section 10.01. The Administrative Agent will promptly
distribute to each Bank its ratable share of each such payment received by
the Administrative Agent for the account of the Banks. Each Borrower shall
make each payment of principal of, and interest on, its Negotiated Rate
Loans, not later than 11:00 A.M. (local time at the relevant Domestic
Lending Office) on the date when due, to the Bank which made such Loan at
its Domestic Lending Office, in U.S. Dollars immediately available in the
city in which such Bank's Domestic Lending Office is located; provided that
--------
all payments of principal of and
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interest on any Negotiated Rate Loan that is denominated in a currency other
than U.S. Dollars shall be payable in the currency in which such Negotiated
Rate Loan is denominated and at such location as agreed between the Company
and such Bank. Each Borrower shall make each reimbursement of an LC
Disbursement in respect of Letters of Credit issued for its account as
provided in Section 2.06(f). Whenever any payment of principal of, or
interest on, or the Domestic Loans or any payment of facility and letter of
credit fees shall be due on a day which is not a Domestic Business Day, the
date for payment thereof shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of, or interest on, the
Euro-Dollar Loans shall be due on a day which is not a Euro-Dollar Business
Day, the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless as a result thereof it would fall in the
next calendar month, in which case such date for payment shall be advanced
to the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Money Market Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day. If the date for
any payment of principal is extended by operation of law or this Section or
otherwise, interest thereon shall be payable for such extended time at the
rate in effect on the initial date for payment. All payments hereunder shall
be made without any deduction whatsoever (other than for any Tax subject to
the provisions of Section 2.17), including, but not limited to, any
deduction for any set-off, recoupment or counterclaim.
(b) Unless the Administrative Agent shall have received
notice from the Company prior to the date on which any payment is due to the
Banks or the Issuing Banks hereunder that the Company or the applicable
Borrower, as the case may be, will not make such payment in full, the
Administrative Agent may assume that the Company or such Borrower, as
applicable, has made such payment in full to the Administrative Agent on
such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Bank or each Issuing Bank on
such due date an amount equal to the amount then due such Bank or such
Issuing Bank. If and to the extent that the Company or such Borrower, as
applicable shall not have so made such payment, each Bank and each Issuing
Bank shall repay to the Administrative Agent forthwith on demand such amount
distributed to such Bank or such Issuing Bank together with interest
thereon, for each day from the date such amount is distributed to such Bank
or such Issuing Bank until the date such Bank or such Issuing Bank repays
such amount to the Administrative Agent, at the Federal Funds Rate.
Section 2.15. Funding Losses. If any Borrower makes any
--------------
payment of principal with respect to any Fixed Rate Loan (pursuant to
Section 2.13, 2.17, Article VI, Article VIII or otherwise) on any day other
than the last day of an Interest Period applicable thereto, or if any
Borrower fails to borrow any Fixed Rate Loan after a Notice of Borrowing has
been given to the Administrative Agent in accordance with Section 2.03 or
2.04, such Borrower shall reimburse each Bank on demand for any resulting
loss or expense incurred by it, including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties,
but excluding loss of margin for the period after any such payment; provided
--------
that such Bank shall have delivered to the Company (as the agent for such
Borrower) a certificate as to the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest error. Upon the
request of the Company (on behalf of any Borrower), a Bank claiming
reimbursement for any such loss or expense under this Section shall provide
to the Company
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<PAGE>
additional information with respect to the determination of such loss or
expense. In determining any such lose or expense, such Bank may use any
reasonable averaging and attribution methods.
Section 2.16. Computation of Interest and Fees. Interest
--------------------------------
on Negotiated Rate Loans (unless the Company and the Bank making such Loan
shall specifically agree otherwise), interest based on the Prime Rate
hereunder and all facility fees hereunder shall be computed on the basis of
a year of 365 days (or 366 days in a leap year) and paid for the actual
number of days elapsed (including the first day but excluding the last day).
All other interest and all letter of credit fees shall be computed on the
basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day).
Section 2.17. Taxes. (a) All payments in respect of
-----
principal, interest, fees, LC Disbursements and other amounts due hereunder
shall be made to each Bank and each Issuing Bank free and clear of, and
without deduction for, any and all present and future taxes, levies,
imposts, deductions, charges, withholdings, and all liabilities with respect
thereto, excluding liabilities of such Bank or such Issuing Bank to pay
directly income and franchise taxes of (i) the United States and the
jurisdiction under the laws of which such Bank or such Issuing Bank is
organized, (ii) the jurisdiction of such Bank's or Issuing Bank's Lending
Office and (iii) any political subdivision or taxing authority thereof or
therein (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Non-excluded
------------
Taxes"). If the Company or any Borrower shall be required by this Agreement
- -----
to deduct any Non-excluded Taxes from or in respect of any sum payable
hereunder to a Bank, an Issuing Bank or the Administrative Agent, the sum
payable shall be increased so that, after making all required deductions
(including deductions applicable to additional sums payable under this
Section), such Bank, such Issuing Bank or the Administrative Agent, as the
case may be, shall receive an amount equal to the sum it would have received
had no such deductions been made.
(b) In addition, the Company and each Borrower will deduct
and pay Non-excluded Taxes and taxes of all jurisdictions with respect to
any amounts paid under this subsection (b). If any Non-excluded Taxes or any
taxes mentioned in this subsection (b) are paid by any Bank, any Issuing
Bank or the Administrative Agent, the Company or the applicable Borrower, as
the case may be, will, upon demand of such Bank or such Issuing Bank (with a
copy of such demand to the Administrative Agent) or the Administrative Agent
and whether or not such Non-excluded Taxes or taxes shall be correctly or
legally asserted, indemnify such Bank, such Issuing Bank or the
Administrative Agent (as the case may be) for such payments, together with
any interest, penalties and expenses in connection therewith; provided that
--------
no payment of such Non-excluded Taxes or other taxes shall be made by any
Bank, any Issuing Bank or the Administrative Agent without prior notice to
the Company.
(c) Each Bank and each Issuing Bank acknowledges that on
the date hereof there is no applicable requirement that any withholding,
deduction or payment be made in respect of Non-excluded Taxes from payments
of interest on the Loans or on unreimbursed LC Disbursements, or other
amounts payable under this Agreement. In the event any such Bank or any
Issuing Bank shall become aware that any withholding, deduction or payment
is required with respect to such Non-excluded Taxes, such Bank or such
Issuing Bank shall notify the
34
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Company as soon as reasonably practicable but in any event within 45 days of
the date it shall have become aware of such required withholding, deduction
or payment and provide the Company with reasonable detail concerning such
required withholding, deduction or payment. Each Bank and each Issuing Bank
agrees that, if necessary in order to avoid such deduction from time to
time, it will avail itself, to the extent it may lawfully do so without
incurring additional expense, of any double tax conventions with the United
States under which such amounts would be receivable by such Bank or such
Issuing Bank without such deduction. In addition, each Bank agrees that, if
any Non-excluded Tax or tax in respect of which the Company or a Borrower is
or would be liable under this Section shall be imposed or increased in
respect of any Syndicated Loan (other than a Base Rate Loan) by such Bank by
virtue of any change in law or otherwise subsequent to the making of such
Loan, the applicable Borrower shall be entitled to prepay such Loan,
together with accrued interest thereon to the date of payment, upon at least
three Euro-Dollar Business Days' notice to such Bank (with a copy of such
notice to the Administrative Agent); in such event, such Bank shall make a
Base Rate Loan to such Borrower in an amount equal to the amount of such
prepayment on the date of such prepayment.
(d) Each Bank and each Issuing Bank agrees that it will
file with the appropriate authorities in the United States such letters,
notices and documents as may reasonably be required to enable the Borrowers
to pay interest hereunder without deduction in respect of United States
Federal withholding taxes.
(e) In the event that either the Company or a Borrower or
the Administrative Agent, any Bank or any Issuing Bank pays any Non-excluded
Tax or tax of the character described in Section 2.17(b), such Person shall,
promptly after the making of such payment, notify the Person for the account
of which such payment was made hereunder and shall forward to such Person
the receipt (or a certified copy thereof) in respect of such payment
promptly after receiving it. In the event the Company or a Borrower pays, or
reimburses the Administrative Agent, any Bank or any Issuing Bank for
paying, any Non-excluded Tax or tax of the character described in Section
2.17(b), and a refund of any such payment (or portion thereof) is received
by the Administrative Agent, any Bank or any Issuing Bank, such Person shall
remit the refund to the Company for the account of the applicable Borrower.
(f) Neither the Company nor any Borrower shall be required
to make any additional payment pursuant to this Section in respect of any
Non-excluded Taxes or other taxes which could be avoided by any Bank, any
Issuing Bank or the Administrative Agent in the exercise of reasonable
diligence (consistent with legal and regulatory restrictions), including a
change in the Euro-Dollar Lending Office or Money Market Lending Office of
such Bank, such Issuing Bank or the Administrative Agent if not otherwise
disadvantageous to such Bank, such Issuing Bank or the Administrative Agent.
(g) Each Bank shall promptly notify the Company of any
change in its Euro-Dollar Lending Office or Money Market Lending Office. In
the event any Bank so changes its Lending Office, such Bank shall not be
entitled to receive any payment in respect of Non-excluded Taxes or other
taxes under this Section to the extent the amount of such payment on the
date of such change in its Lending Office exceeds the amount such Bank would
have been
35
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<PAGE>
entitled to receive on such date under this Section had no such change in
Lending Office been made, unless such change in Lending Office was made at
the request of the Company.
Section 2.18. Pricing Periods. (a) Subject to subsection
---------------
(b) of this Section, "Level I Pricing Period" means any period during which
----------------------
Index Debt shall be rated BBB+ or better by S&P or Baa1 or better by
Moody's, and "Level II Pricing Period" means any period that is not a Level
-----------------------
I Pricing Period. "Pricing Period" means a Level I Pricing Period or a Level
--------------
II Pricing Period.
(b) For purposes of the foregoing definitions, if any
rating for Index Debt established by Moody's or S&P shall be changed (other
than as a result of a change in the rating system of Moody's or S&P), such
change shall be effective, for purposes of the preceding subsection (a), as
of the date on which it is first announced by the applicable rating agency.
If the rating system of Moody's or S&P shall change, (i) the Company and the
Banks shall negotiate in good faith to amend the reference to the affected
rating in the preceding subsection (a) to reflect such changed rating system
and (ii) until the effectiveness of such amendment, the applicable Pricing
Period shall be determined solely by reference to the unaffected rating (if
any) of Index Debt.
Section 2.19. Eligible Subsidiaries. The Company may from
---------------------
time to time cause any wholly-owned Consolidated Subsidiary to become an
Eligible Subsidiary eligible to borrow Loans and to have Letters of Credit
issued for its account hereunder by delivering to the Administrative Agent
an Election to Participate, substantially in the form of Exhibit I hereto,
with respect to such Subsidiary. The eligibility of any such Subsidiary as
an Eligible Subsidiary shall terminate when the Administrative Agent
receives a Notice of Termination, substantially in the form of Exhibit J
hereto, with respect to such Subsidiary. Each Election to Participate
delivered to the Administrative Agent shall be duly executed on behalf of
the relevant Subsidiary and the Company, and each Election to Terminate
delivered to the Administrative Agent shall be duly executed on behalf of
the Company, in such number of copies as the Administrative Agent may
request. The delivery of an Election to Terminate shall not affect any
obligation of the relevant Subsidiary theretofore incurred but on and after
the effective date of such Election to Terminate such Subsidiary shall have
no liability hereunder other than with respect to Loans made to such
Subsidiary and Letters of Credit issued for the account of such Subsidiary
prior to such date. The Administrative Agent shall promptly give notice to
the Banks and the Issuing Banks of its receipt of any Election to
Participate or Election to Terminate.
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<PAGE>
ARTICLE III
CONDITIONS TO BORROWINGS
The effectiveness of this Agreement and the obligation of
each Bank to make a Loan on the occasion of each Borrowing pursuant to
Article II and the obligation of each Issuing Bank to issue, amend, renew or
extend a Letter of Credit is subject to the satisfaction of the following
conditions, an applicable:
Section 3.01. (a) Syndicated Borrowings. In the case of
---------------------
each Syndicated Borrowing hereunder:
(i) receipt by the Administrative Agent of a Notice of
Borrowing as required by Section 2.03;
(ii) the fact that, immediately prior to such Borrowing,
no Default (or, in the case of a Refunding Borrowing, no Default
which has resulted in the Loans being declared due and payable)
shall have occurred and be continuing;
(iii) the fact that, immediately after such Borrowing and
after giving effect to the amount of such Borrowing and the use of
the proceeds thereof, no Default resulting from such Borrowing or
such use of proceeds would occur and the sum of the aggregate
outstanding principal amount of the Loans plus the total LC
----
Exposure will not exceed the Total Commitment; and
(iv) the fact that the representations and warranties
contained in this Agreement (except the representations and
warranties contained in Sections 4.01(d)(iii), 4.01(e), 4.01(f),
4.01(g) and 4.01(l)) shall be true on and as of the date of such
Borrowing with the same force and effect as if made on and as of
such date, except to the extent that any such representation or
warranty in Section 4.01(d)(i) or (ii) or Section 4.01(k) is made
in respect of a specified date or a specified period of time in
which case such representation or warranty shall continue to be
true in respect of the specified date or the specified period of
time.
(b) Money Market Borrowings. In the case of each Money
-----------------------
Market Borrowing hereunder:
(i) receipt by the Administrative Agent of a Notice of
Borrowing as required by Section 2.04;
(ii) the fact that, immediately prior to such Borrowing,
no Default shall have occurred and be continuing;
(iii) the fact that, immediately after such Borrowing and
after giving effect to the amount of such Borrowing and the use of
proceeds thereof, no Default resulting from such Borrowing or such
use of proceeds would occur and the sum of the aggregate
37
<PAGE>
<PAGE>
outstanding principal amount of the Loans plus the total LC
----
Exposure would not exceed the Total Commitment; and
(iv) the fact that the representations and warranties
contained in this Agreement (except the representations and
warranties contained in Sections 4.01(d)(iii), 4.01(e), 4.01(f),
4.01(g) and 4.01(l)) shall be true on and as of the date of such
Borrowing with the same force and effect as if made on and as of
such date, except to the extent that any such representation or
warranty in Section 4.01(d)(i) or (ii) or Section 4.01(k) is made
in respect of a specified date or a specified period of time in
which case such representation or warranty shall continue to be
true in respect of the specified date or the specified period of
time.
(c) Swingline Borrowings. In the case of each Swingline
--------------------
Borrowing hereunder:
(i) receipt by the Administrative Agent of a Notice of
Borrowing as required by Section 2.05;
(ii) the fact that, immediately prior to such Borrowing,
no Default shall have occurred and be continuing;
(iii) the fact that, immediately after such Borrowing and
after giving effect to the amount of such Borrowing and the use of
proceeds thereof, no Default resulting from such Borrowing or such
use of proceeds would occur, the outstanding aggregate principal
amount of the Swingline Loans would not exceed $300,000,000 and the
sum of the aggregate outstanding principal amount of the Loans plus
----
the total LC Exposure would not exceed the Total Commitment; and
(iv) the fact that the representations and warranties
contained in this Agreement (except the representations and
warranties contained in Sections 4.01(d)(iii), 4.01(e), 4.01(f),
4.01(g) and 4.01(l)) shall be true on and as of the date of such
Borrowing with the same force and effect as if made on and as of
such date, except to the extent that any such representation or
warranty in Section 4.01(d)(i) or (ii) or Section 4.01(k) is made
in respect of a specified date or a specified period of time in
which case such representation or warranty shall continue to be
true in respect of the specified date or the specified period of
time.
(d) Letter of Credit Issuance, Amendment, Renewal or
------------------------------------------------
Extension. In the case of each issuance, amendment, renewal or extension of
- ---------
a Letter of Credit hereunder:
(i) receipt by the Administrative Agent of a notice
requesting the issuance, amendment, renewal or extension of a
letter of credit as required by Section 2.06;
(ii) the fact that, immediately prior to such issuance,
amendment, renewal or extension, no Default (or, in the case of a
renewal, no Default which has resulted in the Loans being declared
due and payable) shall have occurred and be continuing;
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<PAGE>
(iii) the fact that, immediately after such issuance,
amendment, renewal or extension, no Default resulting from such
issuance, amendment, renewal or extension would occur, the
aggregate LC Exposures would not exceed $200,000,000 and the sum of
the aggregate outstanding principal amount of the Loans plus the
----
total LC Exposure would not exceed the Total Commitment; and
(iv) the fact that the representations and warranties
contained in this Agreement (except the representations and
warranties contained in Sections 4.01(d)(iii), 4.01(e), 4.01(f),
4.01(g) and 4.01(l)) shall be true on and as of the date of such
Borrowing with the same force and effect as if made on and as of
such date, except to the extent that any such representation or
warranty in Section 4.01(d)(i) or (ii) or Section 4.01(k) is made
in respect of a specified date or a specified period of time in
which case such representation or warranty shall continue to be
true in respect of the specified date or the specified period of
time.
Each Borrowing and each issuance, amendment, renewal or extension of a
Letter of Credit hereunder shall be deemed to be a representation and
warranty by the Company on the date of such Borrowing as to the facts
specified in clauses (ii), (iii) and (iv) of subsection (a), (b), (c) or
(d), as applicable, of this Section.
Section 3.02. Effectiveness. In the case of the
-------------
effectiveness of this Agreement:
(a) receipt by the Administrative Agent of an opinion of
Thomas Larson, Esq., Associate General Counsel of the Company, substantially
in the form of Exhibit F hereto and covering such additional matters
relating to the transactions contemplated hereby as the Required Banks shall
have reasonably requested;
(b) receipt by the Administrative Agent of an opinion of
Milbank, Tweed, Hadley & McCloy LLP, special New York counsel to JPMorgan
Chase, substantially in the form of Exhibit G hereto and covering such
additional matters relating to the transactions contemplated hereby as the
Required Banks shall have reasonably requested;
(c) receipt by the Administrative Agent of a certificate,
signed by any two of the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller and a Vice President of the Company, to the effect
that no Default has occurred and is continuing (or would result from any
Loans being made or Letters of Credit being issued on the Effective Date)
and that the representations and warranties contained in this Agreement are
true on and as of the Effective Date with the same effect as though made on
the Effective Date;
(d) receipt by the Administrative Agent of all documents
it may reasonably request relating to the existence and good corporate
standing of the Company, the corporate authority for, the due authorization
and execution of and the validity of this Agreement and any other matters
relevant hereto, all in form and substance satisfactory to the
Administrative Agent;
(e) the Company shall have terminated all lending
commitments under, and shall have paid in full any outstanding loans
(together with accrued interest thereon), accrued fees and other amounts
payable under, the Credit Agreement dated as of June 30, 2000, among the
39
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<PAGE>
Company, ABI, the banks party thereto and the agent named therein, as such
Credit Agreement has been amended, supplemented or otherwise is in effect
immediately prior to the effectiveness of this Agreement;
(f) receipt by the Administrative Agent, for its account
and the account of the Banks or the Lead Arrangers specified on the cover
page of this Agreement, as the case may be, of all fees required to be paid,
and all expenses required to be paid or reimbursed for which invoices have
been presented (including the reasonable fees and expenses of legal
counsel), on or before the Effective Date; and
(g) receipt by the Administrative Agent of all such other
documents and opinions as the Required Banks or the Administrative Agent
shall request, in each case, in form and substance satisfactory to the
Required Banks or the Administrative Agent, as the case may be.
The opinions referred to in subsections (a) and (b) of this Section and the
certificate referred to in subsection (c) of this Section shall be dated the
Effective Date. The Administrative Agent shall promptly notify the Company,
the Banks and the Issuing Banks of the Effective Date, and such notice shall
be conclusive and binding on all parties hereto.
Section 3.03. Negotiated Rate Borrowings. Each Borrowing
--------------------------
of a Negotiated Rate Loan shall be subject to such conditions as the Company
(on behalf of the applicable Borrower) and the Bank making such Negotiated
Rate Loan may agree and, unless the Company and such Bank shall specifically
agree otherwise, to the conditions set forth in clauses (ii), (iii) and (iv)
of Section 3.01(b).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the
-------------------------------------
Company. The Company represents and warrants to the Banks and the
- -------
Administrative Agent that:
(a) Corporate Existence and Power. The Company is a
-----------------------------
corporation duly incorporated, validly existing and in good standing under
the law of the State of Delaware and has all corporate powers and authority
and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted.
(b) Corporate and Governmental Authorization;
-----------------------------------------
Contravention. The execution, delivery and performance by the Company of
- -------------
this Agreement are within the corporate powers of the Company, have been
duly authorized by all necessary corporate action on the part of the
Company, require no action by or in respect of, or filing with, any
governmental body, agency or official, do not contravene, or constitute a
default under, any provision of any applicable law or regulation or of the
Certificate of Incorporation or By-Laws of the Company or of any agreement,
judgment, injunction, order, decree or other instrument binding on the
Company, and will not result in the creation or imposition of any Lien on
any asset of the Company or any of its Subsidiaries.
40
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(c) Binding Effect. This Agreement constitutes a valid and
--------------
binding agreement of the Company, enforceable in accordance with its terms.
(d) Financial Information. (i) The consolidated balance
---------------------
sheet of the Company and its Consolidated Subsidiaries as of December 31,
2002, and the related consolidated statements of income, changes in
shareholders equity and cash flows for the fiscal year then ended, reported
on by PricewaterhouseCoopers LLP and set forth in the Company's 2002 Form
10-K, a copy of which has been delivered to each of the Banks, fairly
present, in conformity with generally accepted accounting principles, the
consolidated financial position of the Company and its Consolidated
Subsidiaries as of such date and their consolidated results of operations
and cash flows for such fiscal year.
(ii) The unaudited consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of March 31, 2003, and
the related unaudited consolidated statements of income and cash
flows for the three months then ended, set forth in the Company's
quarterly report for the fiscal quarter ended March 31, 2003, as
filed with Securities and Exchange Commission on Form 10-Q, a copy
of which has been delivered to each of the Banks, fairly present,
in conformity with generally accepted accounting principles applied
on a basis consistent with the financial statements referred to in
the preceding clause (i) of this subsection (d), the consolidated
financial position of the Company and its Consolidated Subsidiaries
as of such date and the consolidated results of operations and cash
flows for such three-month period (subject to normal year-end
adjustments).
(iii) Since March 31, 2003, there has been no material
adverse change in the business, financial position or results of
operations of the Company and its Consolidated Subsidiaries,
considered as a whole, on a cumulative basis.
(e) Litigation. There is no action, suit, arbitration or
----------
other proceeding pending against, or to the knowledge of the Company
threatened against or affecting, the Company, any of its Subsidiaries or any
of their respective property before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable
possibility of an adverse decision and which would, if adversely determined,
materially and adversely affect the ability of the Company to perform its
obligations hereunder.
(f) ERISA. As of the date of this Agreement, (i) each
-----
member of the ERISA Group has fulfilled its obligations under the minimum
funding standards of ERISA and the Code with respect to each Plan and is in
compliance with the currently applicable provisions of ERISA and the Code
with respect to each Plan and (ii) no member of the ERISA Group has (A)
sought a waiver of the minimum funding standard under Section 412 of the
Code in respect of any Plan, (B) is in default respecting any contribution
or payment to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement, or has made any amendment to any Plan or Benefit Arrangement,
which has resulted or could reasonably be expected to result in the
imposition of a Lien or the posting of a bond or other security under ERISA
or the Code; or (C) has any outstanding liability under Title IV of ERISA
other than a liability to the PBGC for premiums under Section 4007 of ERISA,
other than any failure to fulfill such obligations or comply with
41
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<PAGE>
such provisions (in the case of clause (i) of this subsection (f)) or any
waiver, default or liability (in the case of clause (ii) of this subsection
(f)) that, when taken together with such other failures, waivers, defaults
or liabilities for which liability is reasonably expected to occur, could
reasonably be expected to result in a material adverse effect on the
business, operations or financial condition of the Company and its
Subsidiaries taken as a whole.
(g) Tax Returns and Payment. The Company and its Domestic
-----------------------
Subsidiaries have filed all income tax returns and all other material tax
returns which are required to be filed and have paid all taxes due pursuant
to such returns or pursuant to any assessment received by the Company or any
of its Subsidiaries, except for the filing of such returns, if any, in
respect of which an extension of time for filing is in effect, except for
such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with generally accepted
accounting principles and except to the extent that such failure to file or
pay does not materially and adversely affect the ability of the Company to
perform its obligations hereunder. The charges, accruals and reserves on the
books of the Company and each of its Subsidiaries in respect of any taxes or
other governmental charges are, in the opinion of the Company, adequate.
(h) Ownership of ABI Voting Interests. The Company owns,
---------------------------------
and will continue to own, directly or indirectly, all of the outstanding
shares of the capital stock of ABI, free and clear of all Liens, claims and
rights of other Persons.
(i) Not an Investment Company. The Company is not, and,
-------------------------
after the use of the proceeds of any Borrowing, will not be, an "investment
company" or a company "controlled" by an "investment company organized or
otherwise created under the laws of the United States or of a State" within
the meaning of the Investment Company Act of 1940, as amended.
(j) Regulations U and X. The execution, delivery and
-------------------
performance of this Agreement in accordance with its terms and the making or
borrowing of the Loans will not violate the provisions of Regulation U or X
of the Board of Governors of the Federal Reserve System. If requested by any
Bank, the Company will furnish to such Bank in connection with any Loan
hereunder a statement in conformity with the requirements of Federal Reserve
Form FR U-1 or FR G-3 referred to in said Regulation U.
(k) Unrestricted Subsidiaries. The Subsidiaries listed on
-------------------------
Schedule 4.01(k) hereto constitute all of the Unrestricted Subsidiaries as
of the date hereof, except for Subsidiaries the assets and earnings of
which, in the aggregate, do not constitute a material portion of the assets
and net earnings of the Company and its Consolidated Subsidiaries.
(l) Environmental Matters. In the ordinary course of its
---------------------
business, the Company conducts an ongoing review of the effect of
Environmental Laws on the business, operations and properties of the Company
and its Domestic Subsidiaries, in the course of which it identifies and
evaluates associated liabilities and costs (including, without limitation,
any capital or operating expenditures required for clean-up or closure of
properties presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with environmental
protection standards imposed by law or as a condition of any license, permit
or contract, any
42
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related constraints on operating activities, including any periodic or
permanent shutdown of any facility or reduction in the level of or change in
the nature of operations conducted thereat and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses). On the basis of this review, the Company has reasonably concluded
that Environmental Laws are unlikely to have a material adverse effect on
the ability of the Company to perform its obligations hereunder.
Section 4.02. Representations and Warranties of the
-------------------------------------
Eligible Subsidiaries. The Company and each Eligible Subsidiary shall, by
- ---------------------
signing and delivering an Election to Participate, be deemed to represent
and warrant to the Banks and the Administrative Agent that, as of the date
of such Election to Participate:
(a) Corporate Existence and Power. Such Eligible
-----------------------------
Subsidiary is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation and is, and
upon each Borrowing by it hereunder will be, a wholly-owned Consolidated
Subsidiary of the Company.
(b) Corporate and Governmental Authorization;
-----------------------------------------
Contravention. The execution and delivery by such Eligible Subsidiary of its
- -------------
Election to Participate, and the performance by it of this Agreement, are
within its corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene, or constitute a
default under, any provision of any applicable law or regulation or of its
Certificate of Incorporation or By-Laws (or comparable organizational
documents) or of any agreement, judgment, injunction, order, decree or other
instrument binding on the Company or such Eligible Subsidiary, and will not
result in the creation or imposition of any Lien on any asset of the Company
or any of its Subsidiaries. The guarantees by the Company of the obligations
of such Eligible Subsidiary have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene, or constitute a
default under, any provision of any applicable law or regulation or of its
Certificate of Incorporation or By-Laws (or comparable organizational
documents) or of any agreement, judgment, injunction, order, decree or other
instrument binding on the Company or such Eligible Subsidiary, and will not
result in the creation or imposition of any Lien on any asset of the Company
or any of its Subsidiaries.
(c) Binding Effect. This Agreement constitutes a valid and
--------------
binding agreement of such Eligible Subsidiary, enforceable in accordance
with its terms.
(d) Not an Investment Company. Such Eligible Subsidiary is
-------------------------
not, nor, after the use of the proceeds of any Borrowing, will it be, an
"investment company" or a company "controlled" by an "investment company
organized or otherwise created under the laws of the United States or of a
State" within the meaning of the Investment Company Act of 1940, as amended.
(e) Regulations U and X. The execution and delivery by
-------------------
such Eligible Subsidiary of its Election to Participate, the performance by
it of this Agreement in accordance with its
43
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<PAGE>
terms and the making or borrowing of its Loans will not violate the
provisions of Regulation U or X of the Board of Governors of the Federal
Reserve System. If requested by any Bank, such Eligible Subsidiary will
furnish to such Bank in connection with any Loan hereunder a statement in
conformity with the requirements of Federal Reserve Form FR U-1 or FR G-3
referred to in said Regulation U.
ARTICLE V
COVENANTS
Section 5.01. Covenants of the Company. The Company agrees
------------------------
that, so long as any Bank has any Commitment hereunder or any Loan or any
other amount owing hereunder remains unpaid or any Letters of Credit remains
outstanding:
(a) Information. The Company will deliver to each of the
-----------
Banks:
(i) as soon as available and in any event within 120 days
after the end of each fiscal year of the Company, the consolidated
balance sheet of the Company and its Consolidated Subsidiaries as
of the end of such fiscal year and the related consolidated
statements of income, changes in shareholders equity and cash flows
for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by
PricewaterhouseCoopers LLP or other independent public accountants
of nationally recognized standing and in compliance with the
applicable rules and regulations of the Securities and Exchange
commission;
(ii) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal
year of the Company, the consolidated balance sheet of the Company
and its Consolidated Subsidiaries as of the end of such quarter and
the related consolidated statements of income and cash flows for
such quarter and for the portion of the Company's fiscal year ended
at the end of such quarter, setting forth in each case in
comparative form the figures for the corresponding quarter and the
corresponding portion of the Company's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness
of presentation, preparation in accordance with generally accepted
accounting principles and consistency by a financial officer or the
chief accounting officer of the Company;
(iii) not later than the date on which the delivery of
each set of financial statements referred to in clauses (i) and
(ii) of this subsection (a) is required, a certificate of a
financial officer or the chief accounting officer of the Company
stating whether there exists on the date of such certificate any
Default and, if any Default then exists, setting forth the details
thereof and the action which the Company is taking or proposes to
take with respect thereto;
(iv) forthwith upon the occurrence of any Default, a
certificate of an officer of the Company setting forth the details
thereof and the action which the Company is taking or proposes to
take with respect thereto;
44
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(v) promptly upon the mailing thereof to the shareholders
of the Company generally, copies of all financial statements,
reports and proxy statements so mailed; and
(vi) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent or for an
offering of debt or equity securities the proceeds of which will
not exceed $5,000,000) and of all annual, quarterly, monthly or
special reports which the Company shall file with the Securities
and Exchange Commission;
provided that (A) the Company shall be deemed to have delivered the
- --------
information specified in clauses (i), (ii), (v) and (vi) of this subsection
(a) on the date such information is posted at the Company's website on the
Internet at "www.anheuser-busch.com", at "www.sec.gov" or at such other
website identified by the Company in a notice to the Administrative Agent
and the Banks that is accessible by the Banks without charge, (B) the
Company shall be deemed to have delivered the information specified in
clauses (iii) and (iv) of this subsection (a) on the date such information
is delivered to the Administrative Agent and the Administrative Agent shall
promptly thereafter post such information to the Intralinks website or
another secure website that is accessible by the Banks without charge or
shall otherwise deliver such information to the Banks and (C) the Company
shall deliver paper copies of any such information to any Bank upon request
of such Bank through the Administrative Agent.
(b) Limitations on Liens. The Company will not create,
--------------------
assume, incur, guarantee or suffer to exist, and will not cause, suffer or
permit any Restricted Subsidiary to create, assume, incur, guarantee or
suffer to exist, any Debt secured by any Lien on any of its Principal Plants
or on the stock or other securities of any Restricted Subsidiary, other
than:
(i) any such Liens existing on the date hereof and listed
on Schedule 5.01(b) hereto; provided that such Liens shall secure
--------
only those obligations which they secure on the date hereof or
extensions, renewals or replacements thereof referred to in clause
(vii) of this subsection (b);
(ii) purchase money Liens on assets acquired after the
date hereof, or Liens on assets acquired after the date hereof
which secure Debt, the proceeds of which are used to reimburse the
Company or any Restricted Subsidiary for the cost of the
acquisition or construction of such assets;
(iii) Liens on any asset acquired by the Company or any
Subsidiary (other than from the Company or any Subsidiary) after
the date hereof existing at the time of acquisition of such asset;
(iv) Liens on an asset to secure all or any part of the
cost of development or construction of such asset or improvements
thereon and which shall be released or satisfied within 120 days
after completion of such development or construction;
(v) Liens on an asset created in connection with the
acquisition, construction or development of additions, extensions
or improvements to such asset which shall be financed by
obligations described in Sections 142, 144(a) or 144(c) of the
Code, as
45
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<PAGE>
amended, or by obligations entitled to substantially similar tax
benefits under other legislation or regulations in effect from time
to time;
(vi) Liens securing indebtedness owing to the Company or
any of its Restricted Subsidiaries by a Restricted Subsidiary of
the Company;
(vii) extensions, renewals or replacements of Liens
referred to in clauses (i) to (vi), inclusive, or (x) of this
subsection (b), that, in the case of a Lien referred to in clause
(iv), (v), (vi) or (x), shall continue to satisfy all of the
requirements of the applicable clause; provided that the Debt
--------
secured by such extension, renewal or replacement Lien is not
increased and that such Lien does not attach to any other assets;
(viii) as permitted under Section 5.01(f);
(ix) Liens incurred in connection with sale and leaseback
transactions permitted under Section 5.01(g); and
(x) Liens on an asset required in connection with any
program, law, statute or regulation of any state or local authority
which provides financial or tax benefits not available without such
Lien, provided that substantially all of the obligations secured by
--------
such Lien are obligations that are in lieu of, or reduce, a
property tax or other payment obligation that itself would have
been secured by a Lien permitted hereunder.
(c) Consolidation, Merger or Disposition of Assets. The
----------------------------------------------
Company will not (i) consolidate or merge with or into any other Person or
(ii) sell, lease or otherwise transfer (or permit any of its Restricted
Subsidiaries to engage in any such transaction), directly or indirectly (in
a single transaction or a series of related transactions), assets
constituting all or substantially all the assets of the Company and its
Restricted Subsidiaries, taken as a whole, to any other Person other than to
the Company or any Restricted Subsidiary that is a wholly-owned Subsidiary
of the Company; provided that nothing in this Agreement shall prohibit (A)
--------
the Packaging Business Divestiture or (B) any consolidation or merger
transaction in which the Company is a party so long as (i) the Company is
the surviving entity and (ii) no Default shall have occurred and be
continuing at the time of or after giving effect to any such consolidation
or merger transaction.
(d) Change in Nature of Business. The Company will not
----------------------------
change, or permit to be changed, the nature of the business conducted by it
and its Subsidiaries as a whole.
(e) Disposition of Assets. The Company will not, and will
---------------------
not permit any of its Restricted Subsidiaries to, dispose of (in a single
transaction or a series of related transactions) any Principal Plants or any
stock of any Restricted Subsidiaries if the net book value of such Principal
Plants and/or the assets of such Restricted Subsidiaries (or, in the case of
the disposition of only a part of the stock of any Restricted Subsidiary,
that percentage of the assets of each such Restricted Subsidiary which is
equal to the percentage of the stock of such Restricted Subsidiary that has
been or is to be disposed of) exceeds, in the aggregate, 10% of Net Tangible
Assets, as reflected on the balance sheet most recently delivered prior to
such transaction (or series of related transactions) by the Company to the
Banks pursuant to
46
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<PAGE>
Section 5.01(a); provided, however, that the foregoing shall not prohibit
-------- -------
(A) the Packaging Business Divestiture or (B) such transaction (or
transactions) (x) if the disposition is made solely to a Restricted
Subsidiary that is a wholly-owned Subsidiary of the Company or (y) if an
amount equal to the proceeds therefrom in excess of such 10% of Net Tangible
Assets shall be applied, not later than 120 days (or, if the Company holds
such excess proceeds in cash or cash equivalents, two years) after such
transaction (or after the transaction in such series which causes such
amount to be exceeded), either to the repayment or prepayment of Funded Debt
of the Company or to pay (or to repay or prepay Debt incurred in order to
pay) the cost of expanding, constructing or acquiring any Principal Plants.
(f) Additional Permitted Secured Indebtedness.
-----------------------------------------
Notwithstanding the provisions of Sections 5.01(b) and (g), the Company and
any one or more Restricted Subsidiaries may (i) create, assume, guarantee or
suffer to exist any Debt secured by a Lien which would otherwise be subject
to the restrictions of Section 5.01(b), and (ii) transfer any Principal
Plant in a sale-leaseback transaction which would otherwise be subject to
the restrictions of Section 5.01(g), if, after giving effect to the
incurrence of such Debt or the transfer of such Principal Plant, the
aggregate principal amount of all such Debt outstanding at such time, when
added to the fair market value of all such Principal Plants transferred
after the date hereof and not reacquired at such time (computed without
duplication of amounts constituting Debt referred to in clause (i) of this
subsection (f)), would not at the time exceed 10% of Net Tangible Assets
(determined before giving effect to the incurrence of such Debt or the
transfer of such Principal Plant).
(g) Sale and Leaseback. Except (x) as permitted under
------------------
Section 5.01(f), (y) for any transaction involving a lease for a temporary
period not to exceed three years, by the end of which it is intended that
the use of the leased Principal Plant by the Company or any Subsidiary will
be discontinued and (z) for any transaction with a state or local authority
that is required in connection with any program, law statute or regulation
that provides financial or tax benefits not available without such
transaction, neither the Company nor any Restricted Subsidiary shall sell
any Principal Plant as an entirety, or any substantial portion thereof, with
the intention of the Company or any Subsidiary taking back a lease of such
Principal Plant or portion, unless:
(i) the fair market value of the net proceeds of such sale
are at least equal to the fair market value (as determined by an
officer of the Company) of such Principal Plant or portion; and
(ii) the Company shall within 120 days (or, if the Company
holds the net proceeds described below in cash or cash equivalents,
two years) after the transfer of title to such Principal Plant or
portion, (A) prepay Funded Debt of the Company in amount equal to
such net proceeds, (B) expend an amount equal to such net proceeds
for the expansion, construction or acquisition of a facility which
will then constitute a Principal Plant or (C) effect a combination
of the transactions referred to in clauses (A) and (B) above in an
amount equal to such net proceeds.
(h) Ownership of Voting Interests of ABI. The Company will
------------------------------------
at all times continue to own, directly or indirectly, 100% of the
outstanding Voting Interests of ABI.
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<PAGE>
(i) Consultation. Solely for the purpose of permitting the
------------
Banks to determine compliance by the Company with this Agreement, the
Company will permit, and will cause its Restricted and Eligible Subsidiaries
to permit, any Bank (and any person appointed by any Bank to whom the
Company does not reasonably object) to discuss the affairs, finances and
accounts of the Company and its Restricted and Eligible Subsidiaries with
the officers of the Company or any of its Subsidiaries, all at such
reasonable times and as often as may reasonably be requested.
(j) Payment of Taxes; Corporate Existence; Maintenance of
-----------------------------------------------------
Properties; Insurance. The Company will, and will cause each Restricted
- ---------------------
Subsidiary to,
(i) pay and discharge promptly all taxes, assessments and
other governmental charges imposed upon it (whether directly or
through the ownership of Subsidiaries) or any of its property;
provided, however, that the Company and each Restricted Subsidiary
-------- -------
of the Company shall not be required to pay any such tax,
assessment or other governmental charge the payment of which is
being contested in good faith and by appropriate proceedings and as
to which adequate reserves have been provided in accordance with
generally accepted accounting principles, except that the Company
will pay or cause to be paid all such taxes, assessments and
governmental charges forthwith upon the commencement of proceedings
to foreclose any Lien which has attached as security therefor,
unless such foreclosure is stayed by the filing of an appropriate
bond;
(ii) do all things necessary to preserve and keep in full
force and effect its corporate existence, rights and franchises;
provided, however, that nothing in this subsection (ii) shall
-------- -------
prevent any consolidation, merger or other transaction among any of
the Company's Subsidiaries or any abandonment or termination of the
corporate existence of any Restricted Subsidiary or any abandonment
or termination of any rights or franchises of any Restricted
Subsidiary or any abandonment or termination of any rights or
franchises of the Company so long as such abandonment or
termination does not change the overall nature of the business
conducted by the Company and its Subsidiaries and so long as it is
not disadvantageous in any material respect to the Banks and is, in
the opinion of the Company, in the best interests of the Company;
(iii) maintain and keep its properties as a whole in good
repair, working order and condition; provided, however, that
-------- -------
nothing in this subsection (iii) shall prevent any abandonment of
any of its properties that is not disadvantageous in any material
respect to the Banks and that is, in the opinion of the Company, in
the best interests of the Company; and
(iv) insure or self-insure its assets and business in such
manner and to such extent as is customary with business enterprises
of comparable size and subject to comparable hazards.
(k) Pari Passu Obligations. Except for secured Debt
----------------------
permitted under Section 5.01(b) or 5.01(f), the Company shall cause the
obligations of the Company in respect of the Loans at all times to rank not
less than pari passu in right of payment with all other senior indebtedness
of the Company.
48
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(l) ERISA. As soon as possible and in any event within 30
-----
days after the Company or any member of the ERISA Group:
(i) receives notice from the PBGC under Title IV
of ERISA of an intent to terminate, impose liability (other
than for premiums under Section 4007 of ERISA) in respect
of, or appoint a trustee to administer any Plan;
(ii) applies for a waiver of the minimum funding
standard under Section 412 of the Code;
(iii) gives notice of intent to terminate any
Plan under Section 4041(c) of ERISA; or
(iv) receives notice from a Multiemployer Plan of
intent to impose liability under Title IV of ERISA;
and such events in the aggregate could subject, or have subjected, the
Company and all members of the ERISA Group to any Taxes, Debts, penalties or
liabilities in excess of $80,000,000 at any one time (it being understood
that any such Taxes, Debts, penalties or liabilities that have been
satisfied or paid by the Company shall not be included in determining the
foregoing amount), the Company will deliver, or cause to be delivered, to
the Administrative Agent a certificate of an Executive Officer setting forth
the details of such of the events described in (i) through (iv) as are
applicable and the action which the Company and all relevant members of the
ERISA Group propose to take or have taken with respect thereto, together
with copies of all notices or filings received from the PBGC, the Internal
Revenue Service or any other agency of the United States government or
required by the PBGC, the Internal Revenue Service or any other agency of
the United States government with respect such of the events described in
(i) through (iv) as are applicable.
(m) Compliance with Laws. The Company will comply, and
--------------------
cause each of its Subsidiaries to comply, in all material respects with all
laws, rules and regulations applicable to it or its property except where
the necessity of compliance therewith is contested in good faith by
appropriate proceedings, and except where failure to so comply would not
materially and adversely affect the ability of the Company to perform its
obligations hereunder.
Section 5.02. Use of Proceeds. The Company and each
---------------
Borrower agree that the proceeds of Loans made under this Agreement will be
used for the general corporate purposes of the applicable Borrower and that
none of such proceeds will be used in violation of any applicable law or
regulation.
ARTICLE VI
DEFAULTS
Section 6.01. Events of Default. If one or more of the
-----------------
following events (each an "Event of Default") shall occur and be continuing,
----------------
such event shall constitute an Event of Default under this Agreement,
whatever the reason for such event and whether it shall occur by operation
49
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<PAGE>
of law or pursuant to any order, rule or regulation of any court or
government authority or otherwise:
(a) any Borrower shall fail to pay, within two days after
the due date thereof, any principal of any of its Loans or any
reimbursement obligation in respect of any LC Disbursement in
respect of any Letter of Credit issued for its account, or the
Company or any Borrower shall fail to pay, within five days after
the due date thereof, any interest on any of its Loans or other
amount payable by it under this Agreement;
(b) the Company shall violate or fail to perform any of
its covenants or agreements contained in Section 5.01(b), (c), (d),
(e), (g) or (h);
(c) the Company or any Eligible Subsidiary shall fail to
perform any term, covenant or agreement herein contained (other
than those referred to in clause (a) or (b) of this Section) for 30
days after written notice of such failure is given to the Company
by the Administrative Agent at the request of any Bank;
(d) the Company or any Eligible Subsidiary shall have made
any representation, warranty or statement in or pursuant to this
Agreement, or in any certificate or other document delivered by or
on behalf of the Company pursuant hereto, which shall prove to have
been false in any material respect when made;
(e) the Company or any Restricted Subsidiary shall fail
(and such failure shall not have been cured or waived) to perform
or observe any provision, term or condition of, or any default
shall occur under, any agreement or instrument relating to any of
its Indebtedness (other than the Indebtedness hereunder), the
principal amount of which equals or exceeds $200,000,000 in the
aggregate (or its equivalent in another currency) which results in
the acceleration of maturity of such Indebtedness;
(f) the Company or any Restricted Subsidiary shall have
entered against it by a court having jurisdiction in the premises a
decree or order for relief in respect of it in an involuntary case
under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
it or for all or any substantial part of its property, or ordering
the winding-up or liquidation of its affairs, and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days;
(g) the Company or any Restricted Subsidiary shall
commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) for it or for all or any
substantial part of its property, or make any general assignment
for the benefit of any of the foregoing or for the benefit of its
creditors;
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(h) any one or more of the events or conditions referred
to in clauses (i) through (iii) of this subsection (h) shall occur:
(i) failure of any member of the ERISA Group
sponsoring a Material Plan to pay within 30 days after it
becomes due an amount or amounts aggregating in excess of
$200,000,000 (other than for premiums under Section 4007
of ERISA) which it shall have become liable to pay under
Section 412 of the Code or Section 302 or Title IV of
ERISA with respect to such Material Plan;
(ii) termination, imposition of liability (other
than for premiums under Section 4007 of ERISA), or
appointment of a trustee by the PBGC under Title IV of
ERISA in respect of any Plan, where the amount of unfunded
benefit liabilities within the meaning of Section
4001(a)(18) of ERISA in respect of such Plan and any other
Plans similarly affected could reasonably be expected to
exceed $200,000,000 in the aggregate; or
(iii) a complete or partial withdrawal from, or a
default within the meaning of Section 4219(c)(5) of ERISA
with respect to one or more Multiemployer Plans which
could reasonably be expected to cause one or more members
of the ERISA Group to incur in the aggregate any Taxes,
Debts, penalties or liabilities in excess of $200,000,000
and such Taxes, Debts, penalties or liabilities remain
unsatisfied for a period of 30 days;
(i) a judgment or order for the payment of money in excess
of $200,000,000 shall be rendered against the Company or any
Restricted Subsidiary and such judgments or order shall continue
unsatisfied and unstayed for a period of 30 days;
(j) any Person, either alone or together with others
acting in concert with such Person, shall own 50% or more of the
Voting Interests of the Company, or the Continuing Directors shall
not constitute a majority of the Board of Directors; or
(k) any guarantee by the Company pursuant to Article IX
shall cease to be, or shall be asserted by the Company not to be,
in full force and effect.
Section 6.02. Remedies Upon Default. Upon the occurrence
---------------------
and continuation of an Event of Default set forth in Section 6.01, (a) the
Administrative Agent shall, if requested in writing by Banks having more
than 51% or more of the Total Commitment, by notice in writing to the
Company (on behalf of the Borrowers) terminate the Total Commitment, and the
Total Commitment shall thereupon terminate, and (b) the Administrative Agent
shall, if requested in writing by the holders of more than 51% or more in
aggregate principal amount of the Loans then outstanding, by notice in
writing to the Company declare the principal of and interest on the Loans
and all other amounts payable hereunder (together with accrued interest
thereon) to be, and they shall thereupon forthwith be and become,
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived; provided,
--------
however, that in the case of the occurrence of any Event of Default
- -------
described in Section 6.01(f) or (g), without any notice to the Company or
any other Borrower or any other act by the Administrative Agent or the
Banks, the Total Commitment shall thereupon terminate
51
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<PAGE>
and the Loans and all other amounts payable hereunder (together with accrued
interest thereon) shall thereupon be and become immediately due and payable
upon such occurrence, without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the Company and
each other Borrower. Simultaneously with the giving of any such notice to
the Company, the Administrative Agent shall notify all of the Banks and the
Issuing Banks thereof.
Section 6.03. Notice of Default. The Administrative Agent
-----------------
shall give notice to the Company under Section 6.01(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks and
the Issuing Banks thereof.
ARTICLE VII
THE ADMINISTRATIVE AGENT
Section 7.01. Appointment and Authorization. Each Bank and
-----------------------------
each Issuing Bank irrevocably appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent by the
terms hereof or thereof, together with all such powers as are reasonably
incidental thereto.
Section 7.02. Administrative Agent and Affiliates. The
-----------------------------------
Person serving as the Administrative Agent shall have the same rights and
powers under this Agreement as any other Bank or Issuing Bank and may
exercise or refrain from exercising the same as though it were not the
Administrative Agent, and such Person and its Affiliates may accept deposits
from, lend money to, and generally engage in any kind of business with the
Company or any Affiliate or Subsidiary of the Company as if it were not the
Administrative Agent hereunder.
Section 7.03. Action by Administrative Agent. The
------------------------------
obligations of the Administrative Agent hereunder are only those expressly
set forth herein. Without limiting the generality of the foregoing, the
Administrative Agent shall not be required to take any action with respect
to any Default, except as expressly provided in Article VI.
Section 7.04. Consultation with Experts. The
-------------------------
Administrative Agent may consult with legal counsel (who may be counsel for
the Company), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken by it
in good faith in accordance with the advice or opinion of such counsel,
accountants or experts.
Section 7.05. Liability of Administrative Agent. Neither
---------------------------------
the Administrative Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or not taken by it, him or
her in connection herewith (a) with the consent or at the request of the
Required Banks or (b) in the absence of its, his or her own gross negligence
or willful misconduct. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Company or any Eligible Subsidiary; (iii) the satisfaction
of any condition specified in
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Article III, except receipt of items required to be delivered to the
Administrative Agent; or (iv) the validity, effectiveness or genuineness of
this Agreement or any other instrument or writing furnished in connection
herewith. The Administrative Agent shall not incur any liability by acting
in reliance upon any notice, consent, certificate, statement or other
writing (which may be a bank wire, telecopy or similar writing) believed by
it to be genuine or to be signed or sent by the proper party or parties. The
Administrative Agent shall be entitled to assume that no Default has
occurred and is continuing, unless the Administrative Agent has actual
knowledge, or has been notified by the Company, of such Default, or has been
notified by a Bank or an Issuing Bank that such Bank or such Issuing Bank
considers that such Default (specifying in detail the nature thereof) has
occurred and is continuing.
Section 7.06. Indemnification. Each Bank shall, ratably in
---------------
accordance with its Commitment, indemnify the Administrative Agent, each
Issuing Bank and each Swingline Bank (in each case to the extent not
reimbursed by the Company) against any cost, expense (including counsel fees
and disbursements and the costs of investigation, discovery and deposition),
claim, demand, action, loss or liability (except such as result from gross
negligence or willful misconduct of the Administrative Agent, such Issuing
Bank or such Swingline Bank, as the case may be) that the Administrative
Agent, such Issuing Bank or such Swingline Bank, as the case may be, may
suffer or incur in connection with this Agreement or any action taken or
omitted hereunder by the Administrative Agent, such Issuing Bank or such
Swingline Bank, as the case may be.
Section 7.07. Credit Decision. Each Bank represents and
---------------
acknowledges that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also represents and
acknowledges that it will, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking any action under this
Agreement.
Section 7.08. Resignation of Administrative Agent. The
-----------------------------------
Administrative Agent may resign at any time by giving written notice thereof
to the Banks, the Issuing Banks and the Company. Upon any such resignation,
the Company, with the consent of the Required Banks, shall have the right to
appoint a successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Company, and shall have accepted
such appointment, within 30 days after the retiring Administrative Agent's
giving of notice of resignation, then the retiring Administrative Agent may,
on behalf of the Banks and the Issuing Banks, appoint a successor
Administrative Agent, which shall be (a) a commercial bank organized under
the laws of the United States or of any State thereof and having a combined
capital and surplus of at least $500,000,000 or (b) a Bank. Upon the
acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges, and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall thereupon be discharged from its duties
and obligations as Administrative Agent under this Agreement. After any
retiring Administrative Agent's resignation as Administrative Agent, the
provisions of this
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Article VII shall continue to inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement.
Section 7.09. Lead Arrangers, Bookrunners, Syndication
----------------------------------------
Agent and Documentation Agents. Notwithstanding anything herein to the
- ------------------------------
contrary, none of the Lead Arrangers, Bookrunners, Syndication Agent and
Documentation Agents listed on the cover page of this Agreement shall have
any duties or responsibilities hereunder in their respective capacity as
such, except in their respective capacity, if any, as a Bank or an Issuing
Bank.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
Section 8.01. Basis for Determining Interest Rate
-----------------------------------
Inadequate or Unfair. If with respect to any Interest Period:
- --------------------
(a) the Administrative Agent determines (which
determination shall be conclusive absent manifest error) that
adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate (in the case of a Syndicated Loan) or the LIBO
Rate (in the case of a Money Market LIBOR Loan) for such Interest
Period, or
(b) in the case of a Syndicated Borrowing, Banks having
50% or more of the Total Commitment notify the Administrative Agent
that the Adjusted CD Rate or the Adjusted LIBO Rate, as the case
may be, as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Banks of maintaining
or funding their CD Loans or Euro-Dollar Loans, as the case may be,
for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Company
(on behalf of the applicable Borrower) and the Banks, and until the
Administrative Agent notifies the Company that the circumstances giving rise
to such suspension no longer exist, the obligations of the Banks to make CD
Loans or Euro-Dollar Loans, as the case may be, shall be suspended; provided
--------
that if the circumstances giving rise to such notice do not affect all the
Banks, then requests by the Company (on behalf of the applicable Borrower)
for Syndicated Borrowings may be made to the Banks that are not affected
thereby. Each Bank which notifies the Administrative Agent pursuant to
subsection (b) of this Section agrees that, in the event that after such
notice the Adjusted CD Rate or Adjusted LIBO Rate, as the case may be, shall
thereafter adequately and fairly reflect the cost to such Bank of
maintaining or funding its CD Loans or Euro-Dollar Loans, as the case may
be, for any Interest Period, it shall notify the Administrative Agent of
such fact. In the event that the Administrative Agent shall receive notice
from such Banks pursuant to the preceding sentence that the conditions set
forth in subsection (b) of this Section no longer exist, the Administrative
Agent shall notify the Company thereof. Unless the Company notifies the
Administrative Agent at least two Domestic Business Days before the date of
any Fixed Rate Borrowing for which a Notice of Borrowing has previously been
given that it elects on behalf of the applicable Borrower not to borrow on
such date, (i) if such Fixed Rate Borrowing is a Syndicated Borrowing, such
Borrowing shall instead be made as a Base Rate Borrowing and (ii) if such
Fixed Rate Borrowing is a Money Market LIBOR Borrowing, the Money Market
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LIBOR Loans comprising such Borrowing shall bear interest for each day from
and including the first day to but excluding the last day of the Interest
Period applicable thereto at the Base Rate for such day.
Section 8.02. Illegality. If, after the date hereof, the
----------
adoption of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Euro-Dollar Lending Office) with any request or directive (whether or not
having the force of law) of any such governmental authority, central bank or
comparable agency, shall make it unlawful or impossible for any Bank (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans
and such Bank shall so notify the Administrative Agent, the Administrative
Agent shall forthwith give notice thereof to the other Banks and the
Company, and until such Bank notifies the Company and the Administrative
Agent that the circumstances giving rise to such suspension no longer exist,
the obligation of such Bank to make Euro-Dollar Loans shall be suspended.
Each Bank which gives any notice pursuant to this Section agrees that, in
the event that the circumstances giving rise to such suspension no longer
exist, such Bank shall notify the Administrative Agent of such fact. In the
event that the Administrative Agent shall receive notice from a Bank
pursuant to the preceding sentence of this Section, the Administrative Agent
shall notify the Company thereof. Before giving any notice to the
Administrative Agent pursuant to the first sentence of this Section, such
Bank shall designate a different Euro-Dollar Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such
Bank shall determine that it may not lawfully continue to maintain and fund
any of its outstanding Euro-Dollar Loans to maturity and shall so specify in
such notice, the applicable Borrower or Borrowers shall immediately prepay
in full the then outstanding principal amount of each such Euro-Dollar Loan,
together with interest accrued thereon to the date of such prepayment.
Concurrently with prepaying each such Euro-Dollar Loan, each applicable
Borrower shall borrow a Base Rate Loan in an equal principal amount from
such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks),
and such Bank shall make such a Base Rate Loan.
Section 8.03. Increased Cost. (a) If, on or after (x) the
--------------
date hereof, in the case of any Syndicated Loan or Letter of Credit or any
obligation to make Syndicated Loans or issue, amend, renew or extend Letters
of Credit, or (y) the date of the related Money Market Quote, in the case of
any Money Market Loan, or (z) the date that the applicable Bank agrees to
make a Negotiated Rate Loan, in the case of any Negotiated Rate Loan, the
adoption of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Lending Office) or any Issuing Bank with any request or directive (whether
or not having the force of law) of any such governmental authority, central
bank or comparable agency:
(i) shall subject any Bank (or its Lending Office) to any
tax, duty or other charge with respect to its Fixed Rate Loans or
its obligation to make Fixed Rate Loans, or shall change the basis
of taxation of payments to any Bank (or its Lending Office) of the
55
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principal of or interest on its Fixed Rate Loans or any other
amounts due under this Agreement in respect of its Fixed Rate Loans
or its obligation to make Fixed Rate Loans (except for changes in
the rate of tax on the overall net income of such Bank or its
Lending Office imposed by the jurisdiction in which such Bank's
principal executive office or Lending Office, as the case may be,
is located);
(ii) shall impose, modify or deem applicable any reserve,
special deposit, deposit insurance assessment (excluding with
respect to any CD Loan any such assessment included in an
applicable Assessment Rate) or similar requirement (including,
without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding (A) with
respect to any CD Loan, any such requirement included in an
applicable CD Reserve Percentage, and (B) with respect to any
Euro-Dollar Loan, any such requirement included in an applicable
Euro-Dollar Reserve Percentage, and (C) any requirement for which
such Bank is entitled to compensation under subsection (b) of this
Section) against assets of, deposits with or for the account of, or
credit extended by, any Bank or its Lending Office or shall impose
on any Bank (or its Lending Office) or on the United States market
for certificates of deposit or the London interbank market any
other condition affecting its Fixed Rate Loans or its obligation to
make Fixed Rate Loans; or
(iii) shall impose, modify or deem applicable any tax,
reserve, special deposit, deposit insurance assessment or similar
requirement against or with respect to or measured by reference to
Letters of Credit issued or to be issued hereunder;
and the result of any of the foregoing is to increase the cost to such Bank
(or its Lending Office) of making or maintaining any Fixed Rate Loan, or to
increase the cost to such Bank or such Issuing Bank of participating in,
issuing or maintaining any Letter of Credit, or to reduce the amount of any
sum received or receivable by such Bank (or its Lending Office) or such
Issuing Bank under this Agreement with respect thereto, by an amount deemed
by such Bank or such Issuing Bank to be material, then, within 15 days after
demand by such Bank or such Issuing Bank to the Company (with a copy to the
Administrative Agent), the applicable Borrower or Borrowers shall pay for
the account of such Bank or such Issuing Bank, as additional interest, such
additional amount or amounts as will compensate such Bank or such Issuing
Bank for such increased cost or reduction; provided that if such Bank or
--------
such Issuing Bank fails to notify the Company that it intends to claim or
may claim compensation for such increased cost or reduction within 45 days
after such Bank or such Issuing Bank has knowledge of such increased cost or
reduction, the applicable Borrower shall not be obligated to compensate such
Bank or such Issuing Bank for such increased cost or reduction accruing
prior to the date on which such Bank or such Issuing Bank first notifies the
Company that it intends to claim such compensation. In determining such
additional amount or amounts, such Bank or such Issuing Bank may use any
reasonable averaging and attribution methods.
(b) If, after the date hereof, the Administrative Agent,
any Bank or any Issuing Bank shall have determined that the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with
the
56
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interpretation or administration thereof (including a change resulting from
a determination of a court or regulatory authority), or compliance by the
Administrative Agent, any Bank or any Issuing Bank (or its Lending Office or
holding company) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such governmental authority,
central bank or comparable agency, has or would have the effect of reducing
the rate of return on the Administrative Agent's, such Bank's or such
Issuing Bank's capital (or the capital of its holding company) as a
consequence of its obligations hereunder to a level below that which the
Administrative Agent, such Bank or such Issuing Bank or its holding company
could have achieved but for such adoption, change or compliance (taking into
consideration the Administrative Agent's, such Bank's or such Issuing
Bank's, as the case may be, policies with respect to capital adequacy) by an
amount deemed by the Administrative Agent, such Bank or such Issuing Bank to
be material, then from time to time, within 15 days after demand by the
Administrative Agent or such Bank or such Issuing Bank (with a copy to the
Administrative Agent), the Company shall pay to the Administrative Agent,
such Bank or such Issuing Bank, as the case may be, such additional amount
or amounts as will compensate the Administrative Agent, such Bank or such
Issuing Bank or its holding company for such reduction. In determining any
additional amount or amounts payable under this subsection (b), the
Administrative Agent, such Bank or such Issuing Bank may use any reasonable
averaging and attribution methods; provided that if after the date hereof,
--------
pursuant to any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof,
the credit quality of a bank's loans, investments or commitments is required
or permitted to be taken into account in determining capital adequacy, then
such averaging and attribution methods shall include a consideration of the
credit quality of the Loans and Letters of Credit relative to the credit
quality of such Bank's or such Issuing Bank's other loans, investments or
commitments, as the case may be.
(c) The Administrative Agent, each relevant Bank or each
relevant Issuing Bank, as the case may be, will promptly notify the Company
and the Administrative Agent of any event of which it has knowledge
occurring after the date hereof which will entitle the Administrative Agent,
such Bank or such Issuing Bank to compensation pursuant to this Section and
will designate a different Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the
judgment of the Administrative Agent or such Bank or Issuing Bank, as the
case may be, be otherwise disadvantageous to the Administrative Agent, such
Bank or such Issuing Bank. A certificate of the Administrative Agent, any
Bank or any Issuing Bank claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error.
(d) Each Bank and each Issuing Bank agrees that if, after
such Bank or such Issuing Bank has made a demand for compensation pursuant
to this Section, the circumstances giving rise to such demand no longer
exist, such Bank or such Issuing Bank shall notify the Administrative Agent
of such fact. In the event that the Administrative Agent shall receive
notice from a Bank or an Issuing Bank pursuant to the preceding sentence of
this Section, the Administrative Agent shall notify the Company thereof.
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Section 8.04. Base Rate Loans Substituted for Affected
----------------------------------------
Fixed Rate Loans. If (a) the obligation of any Bank to make Euro-Dollar
- ----------------
Loans has been suspended pursuant to Section 8.02 or (b) any Bank has
demanded compensation under Section 2.17 or 8.03, and the Company shall, by
at least five Euro-Dollar Business Days' prior notice to such Bank through
the Administrative Agent, have elected that the provisions of this Section
shall apply to such Bank, then, unless and until such Bank notifies the
Company and the Administrative Agent that the circumstances giving rise to
such suspension or demand for compensation no longer apply, all Loans which
would otherwise be made by such Bank as CD Loans or Euro-Dollar Loans, as
the case may be, shall be made instead as Base Rate Loans (on which interest
and principal shall be payable contemporaneously with the related Fixed Rate
Loans of the other Banks).
Section 8.05. Substitution of Bank. If notice has been
--------------------
given by any Bank pursuant to Section 8.02 or 8.03 requiring or permitting
Fixed Rate Loans of such Bank to be prepaid, or requesting compensation
under Section 2.17 or 8.03(b), then the Company shall have the right, in
consultation with the Administrative Agent, to seek one or more satisfactory
substitute financial institutions (which may be one or more of the Banks) to
purchase the Loans and assume the Commitment of such Bank.
ARTICLE IX
GUARANTEE
Section 9.01. The Guarantee. (a) The Company hereby
-------------
unconditionally guarantees the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the principal of and interest
on each Loan to any Eligible Subsidiary, and the full and punctual payment
of all other amounts payable by any Eligible Subsidiary under this
Agreement. The Company agrees that upon failure by any Eligible Subsidiary
to pay punctually any such amount, the Company shall forthwith on demand pay
the amount not so paid at the place and in the manner specified in this
Agreement.
(b) The obligations of the Company hereunder shall be a
guarantee of payment when due and not of collection.
Section 9.02. Guarantee Unconditional. The obligation of
-----------------------
the Company hereunder shall be unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged
or otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver
or release in respect of any obligation of any Eligible Subsidiary
under this Agreement or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to
this Agreement or any Note;
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(iii) any release, non-perfection or invalidity of any
direct or indirect security, or of any Guarantee or other liability
of any third party, for any obligation of any Eligible Subsidiary
under this Agreement or any Note;
(iv) any change in the corporate existence, structure or
ownership of the Company or any Eligible Subsidiary, or any
insolvency, bankruptcy, reorganization or other similar proceeding
in respect of or affecting the Company or any Eligible Subsidiary
or its assets or any release or discharge of any obligation
contained in this Agreement or any Note;
(v) the existence of any claim, set-off or other rights
which the Company may have at any time against any Eligible
Subsidiary, the Administrative Agent, any Bank or any other Person,
whether in connection herewith or any unrelated transactions,
provided that nothing herein shall prevent the assertion of any
--------
such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or
against any Eligible Subsidiary for any reason of this Agreement or
any Note, or any provision of any applicable law or regulation
purporting to prohibit the payment by any Eligible Subsidiary of
the principal of or interest on any Loan or any other amount
payable by any Eligible Subsidiary under this Agreement; or
(vii) any failure of any Bank or the Administrative Agent
to assert any claim or demand or to enforce any right or remedy
against the any Eligible Subsidiary or any other guarantor or any
other act or omission to act or delay of any kind by the Company,
any Eligible Subsidiary, the Administrative Agent, any Bank or any
other Person, or any other circumstance whatsoever which might, but
for the provisions of this clause (vii), constitute a legal or
equitable discharge of the obligations of the Company hereunder.
Section 9.03. Discharge Only Upon Payment in Full
-----------------------------------
Reinstatement in Certain Circumstances. The obligation of the Company
- --------------------------------------
hereunder shall remain in full force and effect until the principal of and
interest on the Loans and all other amounts payable under this Agreement
shall have been paid in full. If at any time any payment of the principal of
or interest on any Loan or any other amount payable by any Eligible
Subsidiary under this Agreement is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy or reorganization of the Company
or any other Borrower or otherwise, the obligations of the Company hereunder
with respect to such payment shall be reinstated as though such payment had
been due but not made at such time.
Section 9.04. Waiver by the Company. The Company
---------------------
irrevocably waives (a) acceptance hereof, (b) presentment, demand, protest
and any notice not provided for herein, and (c) any requirement that at any
time any action be taken by any Person against any Eligible Subsidiary or
any other Person.
Section 9.05. Subrogation. Upon making any payment under
-----------
its guarantee hereunder, the Company shall be subrogated to the rights of
the payee against the applicable Eligible Subsidiary with respect to such
payment; provided that the Company shall not enforce any right to payment by
--------
reason of subrogation in respect of any Eligible Subsidiary until all
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amounts of principal of and interest on the Loans and all other amounts
payable by such Eligible Subsidiary under this Agreement have been paid in
full and either (a) the Total Commitment has been terminated or (b) such
Subsidiary has ceased to be an Eligible Subsidiary hereunder.
Section 9.06. Stay of Acceleration. If acceleration of the
--------------------
time for payment of any amount payable by any Eligible Subsidiary under this
Agreement is stayed upon the insolvency, bankruptcy or reorganization of any
Eligible Subsidiary, all such amounts otherwise subject to acceleration
under the terms of this Agreement shall nonetheless be payable by the
Company hereunder forthwith on demand by the Administrative Agent made at
the request of the requisite proportion of the Banks specified in Article
VI.
ARTICLE X
MISCELLANEOUS
Section 10.01. Notices. All notices, requests and other
-------
communications to any party hereunder shall be in writing (including bank
wire, telecopier or similar writing) and shall be given to such party: (a)
in the case of the Company or the Administrative Agent, at its address or
telecopier number set forth on the signature pages hereof, (b) in the case
of any other Bank, at its address or telecopier number set forth in its
Administrative Questionnaire or (c) in the case of any party, such other
address or telecopier number as such party may hereafter specify for the
purpose by notice to the Administrative Agent and the Company. Each such
notice, request or other communication shall be effective (i) if given by
mail, five days after such communication is deposited in the mails with
appropriate first class, certified or registered postage prepaid, addressed
as aforesaid, or (ii) if given by any other means, when delivered at the
telecopier number or address specified in this Section; provided that
--------
notices to the Administrative Agent under Section 2.03, 2.04, 2.05, 2.06,
2.07 or 2.12 or Article VI or VIII shall not be effective until received.
All notices, requests and other communications to or from any Eligible
Subsidiary hereunder shall be valid and effective if given to or from the
Company as agent for such Eligible Subsidiary.
Section 10.02. No Waivers. No failure or delay by the
----------
Administrative Agent, any Bank or any Issuing Bank in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
Section 10.03. Expenses; Documentary Taxes; Indemnity. (a)
--------------------------------------
The Company agrees to pay (i) all reasonable out-of-pocket expenses of the
Administrative Agent, including reasonable fees and disbursements of special
counsel for the Administrative Agent, in connection with the preparation,
execution and delivery of this Agreement, any waiver or consent hereunder or
any amendment hereof, (ii) all out-of-pocket expenses incurred by any
Issuing Bank in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder, and
(iii) if an Event of Default occurs, all out-of-pocket
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expenses incurred by the Administrative Agent, any Bank or any Issuing Bank,
including reasonable fees, disbursements and other charges of either
internal or external counsel (as the Administrative Agent, such Bank or such
Issuing Bank chooses), in connection with such Event of Default and
collection and other enforcement proceedings resulting therefrom. The
Company shall indemnify each Bank and each Issuing Bank against any transfer
taxes, documentary taxes or similar assessments or charges made by any
governmental authority by reason of the execution and delivery of this
Agreement.
(b) The Company agrees to indemnify each Bank, each
Issuing Bank, the Administrative Agent and each of their respective,
officers, directors, employees and agents (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
----------
liabilities, losses, damages, costs and expenses of any kind (including,
without limitation, the reasonable fees and disbursements of counsel for any
Indemnitee in connection with any investigative, administrative or judicial
proceeding, whether or not such Indemnitee shall be designated a party
thereto), which may be incurred by any Indemnitee, relating to or arising
out of this Agreement, any Loan or Letter of Credit or the actual or
proposed use of the proceeds thereof (including any refusal by any Issuing
Bank to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit); provided that no Indemnitee shall have the
--------
right to be indemnified hereunder for its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction.
Section 10.04. Sharing of Setoffs. Each Bank agrees that
------------------
if it shall, by exercising any right of set-off or counterclaim or
otherwise, receive payment of a proportion of the aggregate amount of
principal and interest due with respect to any Loan or participations in any
LC Disbursement or Swingline Loan held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Loan or participations in any
LC Disbursement or Swingline Loan held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Loans and participations in LC Disbursements and
Swingline Loans held by the other Banks (to which purchase the Company and
each other applicable Borrower hereby consents), and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Loans and participations in LC Disbursements
and Swingline Loans held by the Banks shall be shared by the Banks pro rata;
provided that nothing in this Section shall impair the right of any Bank to
- --------
exercise any right of set-off or counterclaim it may have and to apply the
amount subject to such exercise to the payment of indebtedness of the
Company or any other Borrower other than its indebtedness hereunder. The
Company and each other Borrower agree, to the fullest extent they may
effectively do so under applicable law, that any holder of a participation
in a Loan, or in a participation in an LC Disbursement or Swingline Loan,
granted in accordance with this Agreement or any holder of a participation
in a Loan, or in a participation in an LC Disbursement or Swingline Loan,
acquired pursuant to the arrangements described in this Section may exercise
rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the applicable Borrower or the Company, as the case may be, in
the amount of such participation.
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Section 10.05. Amendments and Waivers. (a) The Company and
----------------------
the Administrative Agent may amend or supplement this Agreement without
notice to or the consent of any Bank, any Issuing Bank or any Eligible
Subsidiary (i) to cure any ambiguity, defect or inconsistency, (ii) to
provide for the substitution of one or more financial institutions for a
Bank pursuant to Section 8.05, or (iii) to make any other change that does
not adversely affect the rights of any Bank or any Issuing Bank.
(b) Except as provided in subsection (a) of this Section,
any provision of this Agreement may be amended or waived if, but only if,
such amendment or waiver is in writing and is signed by the Company and the
Required Banks (and, to the extent required by the next succeeding
paragraph, the Administrative Agent, the Issuing Banks and the Swingline
Banks); provided that no such amendment or waiver shall, unless signed by
--------
all the Banks affected by such amendment or waiver, (i) increase the
Commitment of any Bank or subject any Bank to any additional obligation,
(ii) alter the manner in which payments or prepayments of principal,
interest or other amounts hereunder shall be applied as among the Banks
(iii) reduce the principal of or rate of interest on any Loan or any fees
hereunder, (iv) postpone the date fixed for any payment of principal of or
interest on any Loan, any LC Disbursement or any fees hereunder, (v) extend
the Termination Date, or (vi) alter the absolute and unconditional character
of, or release or terminate, the guarantee of the Company contained in
Article IX, and no such amendment or waiver shall, unless signed by all the
Banks, change the percentage of the Total Commitment or of the aggregate
unpaid principal amount of the Loans or LC Disbursements, or the number of
Banks, which shall be required for the Banks or any of them to take any
action under this Section or any other provision of this Agreement. Each
Eligible Subsidiary, by its execution of an Election to Participate, grants
to the Company an irrevocable power of attorney to enter into amendments or
waivers of this Agreement on behalf of such Eligible Subsidiary, and agrees
that it shall be bound by any such amendment or waiver executed by the
Company, whether or not such amendment or waiver is executed by the Company
in the name of such Eligible Subsidiary.
If any amendment or waiver of this Agreement shall affect
the rights or duties of the Administrative Agent, the approval of the
Administrative Agent shall be required therefor. If any amendment or waiver
of this Agreement shall affect the procedures or requirements for Swingline
Borrowings or payments in respect thereof, the approval of each Swingline
Bank shall be required therefor. If any amendment or waiver if this
Agreement shall affect the procedures or requirements for issuances of
Letters of Credit or payments in respect thereof, the approval of each
Issuing Bank shall be required therefor. Neither (i) amendments to the
covenants set forth in Article V or the provisions herein defining the
Events of Defaults or the remedies therefor nor (ii) waivers of any such
covenants or Events of Default shall require the approval of the
Administrative Agent, the Swingline Banks or the Issuing Banks.
Section 10.06. Successors and Assigns. (a) The provisions
----------------------
of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that (i)
the Company may not assign or otherwise transfer any of its rights under
this Agreement without the prior written consent of all Banks and (ii) no
Bank or Issuing Bank may assign or otherwise transfer its Commitment in
whole or in part, or sell, assign or otherwise transfer its Loans or Letters
of Credit or grant participations in its Loans, Letters of Credit or rights
under this Agreement in whole or in part, other than as the result of the
62
<PAGE>
<PAGE>
designation of a different Lending Office in accordance with this Agreement
or as permitted under Sections 2.05, 2.06, 8.05 and 10.04 and the following
provisions of this Section.
(b) Any Bank may at any time grant to one or more banks or
other institutions (each a "Participant") participating interests in its
-----------
Commitment or any or all of its Loans, LC Exposure or Swingline Exposure;
provided that such Bank shall, except in the case of such a grant (i)
- --------
pursuant to Section 10.04, (ii) in respect of Money Market Loans or (iii) to
a Bank Affiliate, obtain the Company's prior consent to such grant. In the
event of any such grant by a Bank of a participating interest to a
Participant, whether or not upon notice to the Company and the
Administrative Agent, such Bank or such Issuing Bank shall remain
responsible for the performance of its obligations hereunder, and the
Company, each other Borrower and the Administrative Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's
rights and obligations under this Agreement. Any agreement pursuant to which
any Bank may grant such a participating interest shall provide that such
Bank shall retain the sole right and responsibility to enforce the
obligations of the Company and each other Borrower hereunder including,
without limitation, the right to approve amendments, modifications or
waivers of the provisions of this Agreement as set forth in this Section;
provided that such participation agreement may provide that such Bank will
- --------
not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii) or (iii) of Section 10.05(b) without the
consent of the Participant. The Company agrees that each Participant shall,
to the extent provided in its participation agreement and subject to
subsection (e) of this Section, be entitled to the benefits of Article VIII
with respect to its participating interest.
(c) Any Bank may at any time assign to one or more banks
or other institutions (each an "Assignee") all, or a proportionate part of
--------
all, of its rights and obligations under this Agreement, and such Assignee
shall assume such rights and obligations, pursuant to an Assignment and
Acceptance in substantially the form of Exhibit H hereto executed by such
Assignee and such transferor Bank, with (and subject to) the consent of the
Company and the Administrative Agent (which consents shall not be required
in the case of an assignment (A) by a Bank to any other Bank so long as such
assignment does not (x) cause the aggregate amount of the Commitments of any
Bank and its Bank Affiliates to exceed $300,000,000 or (y) increase the
amount of the Commitments of any Bank and its Bank Affiliates if the
aggregate amount of the Commitments of such Bank and its Bank Affiliates
exceeds $300,000,000 immediately prior to such assignment or (B) by a Bank
to its Bank Affiliate so long as (v) if such transferor Bank is a
"depository institution" (within the meaning of Regulation A of the Board of
Governors of the Federal Reserve System), such Bank Affiliate shall also be
a depository institution and (w) at the time of such assignment S&P or
Moody's shall rate the senior, unsecured, long-term debt of such transferor
Bank and the rating or ratings for senior, unsecured, long-term debt of such
Bank Affiliate by S&P and/or Moody's, as applicable, shall not be lower than
such rating(s) of such transferor Bank); provided that (i) such assignment
--------
may, but need not, include rights of the transferor Bank in respect of
outstanding Money Market Loans; (ii) except in the case of an assignment to
a Bank or a Bank Affiliate or an assignment of the entire remaining amount
of the transferor Bank's Commitment and outstanding Loans, LC Exposure and
Swingline Exposure, the amount of such assignment shall not be less than
$5,000,000 unless otherwise agreed by the Borrower and the Administrative
Agent and (iii) the Assignee, if it shall not be a Bank, shall deliver to
the Administrative Agent an Administrative Questionnaire. Upon execution and
63
<PAGE>
<PAGE>
delivery of such instrument and payment by such Assignee to such transferor
Bank of an amount equal to the purchase price agreed between such transferor
Bank and such Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be required. In
connection with any such assignment, the transferor Bank or such Assignee
shall pay to the Administrative Agent an administrative fee for processing
such assignment in the amount of $3,500. If the Assignee is not incorporated
under the laws of the United States or a state thereof, it shall, prior to
the first date on which interest or fees are payable hereunder for its
account, deliver to the Company and the Administrative Agent certification
as to exemption from deduction or withholding of any United States federal
income taxes in accordance with Section 2.15.
Notwithstanding anything to the contrary contained herein,
any Bank (a "Granting Bank") may grant to a special purpose vehicle (an
-------------
"SPV") of such Granting Bank, identified as such in writing from time to
---
time by the Granting Bank to the Administrative Agent and the Company, the
option to provide to any Borrower all or any part of any Loan or to make a
payment to any Issuing Bank or Swingline Bank in respect of its LC Exposure
or Swingline Exposure, as the case may be, that such Granting Bank would
otherwise be obligated to make hereunder to such Borrower, such Issuing Bank
or such Swingline Bank, provided that (i) nothing herein shall constitute a
--------
commitment by any SPV to make any Loan or to make any payment in respect of
any LC Exposure or Swingline Exposure, (ii) if an SPV elects not to exercise
such option or otherwise fails to provide all or any part of such Loan or
such payment in respect of LC Exposure or Swingline Exposure, the Granting
Bank shall be obligated to make such Loan or such payment pursuant to the
terms hereof and (iii) any Borrower, any Issuing Bank or any Swingline Bank
may bring any proceeding against the Granting Bank in order to enforce any
rights of such Borrower, such Issuing Bank or such Swingline Bank, as the
case may be, hereunder. The making of a Loan or any payment in respect of LC
Exposure or Swingline Exposure by an SPV hereunder shall utilize the
Commitment of the Granting Bank to the same extent, and as if, such Loan or
such payment were made by the Granting Bank. Each party hereto hereby agrees
that no SPV shall be liable for any payment under this Agreement for which a
Bank would otherwise be liable, for so long as, and to the extent that, the
related Granting Bank makes such payment. In furtherance of the foregoing,
each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding commercial paper or
other senior indebtedness of any SPV, it will not institute against, or join
any other person in instituting against, such SPV any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or
similar proceedings under the laws of the United States or any State thereof
in respect of any claim arising under this Agreement. In addition,
notwithstanding anything to the contrary contained in this Section, any SPV
may, with the prior written consent of the Company and the Administrative
Agent (to the extent such consent is required under the immediately
preceding paragraph of this subsection (c)) but without paying any
processing fee therefor, assign all or a portion of its interests in any
Loans and repayment rights in respect of LC Exposure and Swingline Exposure
to the Granting Bank or to any financial institutions providing liquidity
and/or credit to or for the account of such SPV to fund the Loans made by
such SPV or to support the securities (if any) issued by such SPV and such
SPV may disclose, on
64
<PAGE>
<PAGE>
a confidential basis, confidential information with respect to the Company
and its Subsidiaries to any rating agency, commercial paper dealer or
provider of a surety, guarantee or credit liquidity enhancement to such SPV.
This paragraph may not be amended without the consent of any SPV at the time
holding Loans under this Agreement.
(d) Any Bank may at any time assign all or any portion of
its rights under this Agreement to secure obligations of such Bank,
including, without limitation, to a Federal Reserve Bank, provided that any
--------
foreclosure or similar action taken with respect to such assignment to any
Person other than a Federal Reserve Bank shall be subject to the provisions
of this Section concerning assignments. No such assignment shall release the
transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any
Bank's rights shall be entitled to receive any greater payment under Section
8.03 than such Bank would have been entitled to receive with respect to the
rights assigned or otherwise transferred, unless such assignment or transfer
is made (i) with the prior consent of the Company, (ii) by reason of the
provisions of Section 8.02 or 8.03 requiring such Bank to designate a
different Lending Office under certain circumstances or (iii) at a time when
the circumstances giving rise to such greater payment did not exist.
(f) If the Fixed Rate Loans of any Reference Bank are
repaid pursuant to Article VIII, the Administrative Agent shall, with the
consent of the Company and the Required Banks, appoint another Bank to act
as a Reference Bank hereunder.
(g) The Administrative Agent, acting solely for this
purpose as an agent of the Company, shall maintain at one of its offices in
New York City a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Banks, and
the Commitments of, and principal amount of the Loans and LC Disbursements
owing to, each Bank pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the
--------
Company, the Administrative Agent, the Banks and the Issuing Banks may treat
each Person whose name is recorded in the Register pursuant to the terms
hereof as a Bank hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Company, any other Borrower, any Bank and any Issuing
Bank, at any reasonable time and from time to time upon reasonable prior
notice.
Section 10.07. Collateral. Each of the Banks and each of
----------
the Issuing Banks represents and warrants to the Administrative Agent, the
other Banks and the other Issuing Banks that it in good faith is not relying
on any "margin stock" (as defined in Regulation U of the Board of Governors
of the Federal Reserve System) as collateral in the extension or maintenance
of the credit provided for in this Agreement.
Section 10.08. New York Law; Submission to Jurisdiction.
----------------------------------------
This Agreement and any other document delivered hereunder shall be construed
in accordance with and governed by the law of the State of New York. Each of
the Company and the Eligible Subsidiaries hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern
65
<PAGE>
<PAGE>
District of New York and of any New York State court sitting in New York
City for purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby. Each of the Company
and the Eligible Subsidiaries irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has been brought in
an inconvenient forum.
Section 10.09. Counterparts; Effectiveness. This Agreement
---------------------------
may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective when the
Administrative Agent shall have received counterparts hereof signed by each
of the parties hereto (or, in the case of any Bank or any Issuing Bank as to
which an executed counterpart shall not have been received, receipt by the
Administrative Agent in form satisfactory to it of telecopy or other written
confirmation from such Bank or such Issuing Bank of execution of a
counterpart hereof by such Bank or such Issuing Bank) and when the
conditions specified in Section 3.02 shall have been satisfied or waived.
Section 10.10. Independence of Covenants. All covenants
-------------------------
hereunder shall be given independent effect so that if a particular action
or condition is not permitted by any of such covenants, the fact that it
would be permitted by an exception to, or be otherwise within the
limitations of, another covenant shall not avoid the effectiveness of the
first covenant.
Section 10.11. WAIVER OF JURY TRIAL. EACH OF THE COMPANY,
--------------------
THE ELIGIBLE SUBSIDIARIES, THE ADMINISTRATIVE AGENT, THE BANKS AND THE
ISSUING BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 10.12. Waiver Under Pre-Existing Credit
--------------------------------
Agreements. By its execution hereof, each undersigned Bank that also is a
- ----------
party to the credit agreement referred to in clause (f) of Section 3.02
hereby waives the provisions of such credit agreement that would require
advance notice for the termination of commitments thereunder or the
prepayment of loans thereunder; provided that (a) the foregoing waiver shall
--------
apply only to the termination of all commitments under such credit agreement
and repayment of all loans outstanding thereunder in connection with the
effectiveness of this Agreement and (b) the Company shall, in lieu of
advance notice of any such termination or prepayment, give notice thereof to
the Agent (as defined in such credit agreement) on the date of such
termination or prepayment.
Section 10.13. Action by the Company on Behalf of the
--------------------------------------
Borrowers. Any payment obligation or other obligation of any Borrower
- ---------
hereunder may be performed by the Company on behalf of such Borrower, and
such performance by the Company shall be deemed to satisfy the corresponding
obligation of such Borrower hereunder.
Section 10.14. Survival. All covenants, agreements,
--------
representations and warranties made by the Company or any other Borrower
herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to
66
<PAGE>
<PAGE>
have been relied upon by the other parties hereto and shall survive the
execution and delivery of this Agreement and the making of any Loans,
regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Bank may
have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in
full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this Agreement is
outstanding and unpaid and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.15, 2.17, 8.03, 9.03 and 10.03 and
Article VII shall survive and remain in full force and effect regardless of
the consummation of the transactions contemplated hereby, the repayment of
the Loans, the expiration or termination of the Commitments or the
termination of this Agreement or any provision hereof.
Section 10.15. Permitted Disclosure of Certain Tax Related
-------------------------------------------
Matters. Notwithstanding anything herein to the contrary, each Borrower,
- -------
each Bank and the Administrative Agent (and each employee, representative,
or other agent of each of the foregoing parties) may disclose to any and all
Persons without limitation of any kind, the U.S. federal income tax
treatment and U.S. federal income tax structure of the transactions
contemplated hereby and all materials of any kind (including opinions or
other tax analyses) that are provided to any of the foregoing parties
relating to such tax treatment and tax structure. However, no disclosure of
any information relating to such tax treatment or tax structure may be made
to the extent nondisclosure is reasonably necessary in order to comply with
applicable securities laws.
67
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
ANHEUSER-BUSCH COMPANIES, INC.
By: /s/ William J. Kimmins, Jr.
-----------------------------------
Name: William J. Kimmins, Jr.
Title: Vice President and Treasurer
Address for Notices:
One Busch Place
St. Louis, Missouri 63118
Telecopy: (314) 765-9005
Telephone: (314) 577-2329
Attention: Vice President and Treasurer
<PAGE>
<PAGE>
JPMORGAN CHASE BANK, as
Administrative Agent
By: /s/ B. B. Wuthrich
---------------------
Name: B. B. WUTHRICH
Title: VICE PRESIDENT
Address for Notices:
270 Park Avenue
New York, New York 10017
Attention:
Telecopy:
Telephone:
<PAGE>
<PAGE>
BANKS
-----
JPMORGAN CHASE BANK
By: /s/ B. B. Wuthrich
---------------------
Name: B. B. WUTHRICH
Title: VICE PRESIDENT
<PAGE>
<PAGE>
BANK ONE, NA
By: /s/ Joseph Pinzone
--------------------
Name: Joseph Pinzone
Title: Director
<PAGE>
<PAGE>
BANK OF AMERICA, N.A.
By: /s/ David L. Catherall
------------------------
Name: David L. Catherall
Title: Vice President
<PAGE>
<PAGE>
CITIBANK, N.A.
By: /s/ Carolyn A. Kee
---------------------
Name: Carolyn A. Kee
Title: Vice President
<PAGE>
<PAGE>
UBS AG
By: /s/ Patricia O'Kicki
------------------------
Name: Patricia O'Kicki
Title: Director
By: /s/ Wilfred V. Saint
-------------------------
Name: Wilfred V. Saint
Title: Associate Director
Banking Products
Services, US
<PAGE>
<PAGE>
MERRILL LYNCH BANK USA
By: /s/ Louis Alder
---------------------
Name: Louis Alder
Title: Vice President
<PAGE>
<PAGE>
MORGAN STANLEY BANK
By: /s/ Jaap L. Tonckens
--------------------------
Name: Jaap L. Tonckens
Title: Vice President
Morgan Stanley Bank
<PAGE>
<PAGE>
SUN TRUST BANK
By: /s/ Susan M. Hall
------------------------
Name: SUSAN M. HALL
Title: MANAGING DIRECTOR
<PAGE>
<PAGE>
MELLON BANK, N.A.
By: /s/ Mark F. Johnston
----------------------
Name: Mark F. Johnston
Title: Vice President
<PAGE>
<PAGE>
STATE STREET BANK AND TRUST
COMPANY
By: /s/ Fred Epstein
-----------------------
Name: Fred Epstein
Title: Vice President
<PAGE>
<PAGE>
BARCLAYS BANK PLC
By: /s/ Douglas Bernegger
-----------------------
Name: DOUGLAS BERNEGGER
Title: DIRECTOR
<PAGE>
<PAGE>
BNP PARIBAS
By: /s/ Peter Labrie
-----------------------------
Name: Peter Labrie
Title: Central Region Manager
By: /s/ Rosalie Hawley
-----------------------------
Name: Rosalie Hawley
Title: Director
<PAGE>
<PAGE>
MIZUHO CORPORATE BANK, LTD
By: /s/ Robert P. Gallagher, Jr.
-----------------------------
Name: Robert P. Gallagher, Jr.
Title: Vice President & Team Leader,
U.S. Corp Finance Dept.
[as per Alex Zarzhevsky, Officer, 212-282-3988.]
<PAGE>
<PAGE>
SUMITOMO MITSUI BANKING
CORPORATION
By: /s/ Leo Pagarigan
----------------------------
Name: Leo E. Pagarigan
Title: Senior Vice President
<PAGE>
<PAGE>
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Gregory D. Knudsen
----------------------------
Name: GREGORY D. KNUDSEN
Title: SENIOR VICE PRESIDENT
<PAGE>
<PAGE>
WELLS FARGO BANK, N.A.
By: /s/ Steven M. Buehler
----------------------------
Name: Steven M. Buehler
Title: Vice President
By: /s/ Melissa F. Nachman
----------------------------
Name: Melissa F. Nachman
Title: Vice President
<PAGE>
<PAGE>
EXHIBIT A
NOTE
New York, New York
[_________], 2003
For value received, [ANHEUSER-BUSCH COMPANIES, INC.][NAME
OF ELIGIBLE SUBSIDIARY], a [_________] [Delaware corporation] (the
"Borrower"), promises to pay to the order of ______________ (the "Bank"),
-------- ----
for the account of its Lending Office, the unpaid principal amount of each
Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the last day of the Interest Period relating to such
Loan. The Borrower promises to pay interest on the unpaid principal amount
of each such Loan on the dates and at the rate or rates provided for in the
Credit Agreement. All such payments of principal and interest shall be made
in lawful money of the United States in Federal or other immediately
available funds at the office of JPMorgan Chase Bank, 270 Park Avenue, New
York, New York 10017; provided that all payments of principal of and
--------
interest on any Negotiated Rate Loan advanced by the Bank in a currency
other than U.S. Dollars shall be made in the currency in which such
Negotiated Rate Loan is denominated at such location as agreed with the
Bank.
All Loans made by the Bank, the respective types and
maturities thereof and all repayments of the principal thereof shall be
recorded by the Bank and, prior to any transfer hereof, appropriate
notations to evidence the foregoing information with respect to each such
Loan then outstanding shall be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation
--------
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This note is one of the Notes referred to in the Credit
Agreement dated as of August 4, 2003 (as amended from time to time, the
"Credit Agreement"), among [the Borrower][Anheuser-Busch Companies, Inc.
----------------
(the "Company")], the Banks party thereto and JPMorgan Chase Bank, as
-------
Administrative Agent. Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment, the acceleration of the maturity and the
limitations on the transferability of this Note.
[ANHEUSER-BUSCH COMPANIES, INC.]
[NAME OF ELIGIBLE SUBSIDIARY]
By ____________________________
Name:
Title:
Form of Note
------------
<PAGE>
<PAGE>
2
Note (cont'd)
<TABLE>
LOANS AND PAYMENTS OF PRINCIPAL
- ----------------------------------------------------------------------------------------------------------------------
<CAPTION>
Amount of
Principal Maturity Notation
Date Amount of Loan Type of Loan Currency* Repaid Date Made By
<S> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
<FN>
- --------------
* Only applicable to Negotiated Rate Loans made in a currency other than U.S. dollars.
</TABLE>
Form of Note
------------
<PAGE>
<PAGE>
EXHIBIT B
Form of Money Market Quote Request
----------------------------------
[Date]
To: JP Morgan Chase Bank (the "Administrative Agent")
--------------------
From: Anheuser-Busch Companies, Inc.
Re: Credit Agreement dated as of August 4, 2003 among
Anheuser-Busch Companies, Inc., the Banks party thereto
and the Administrative Agent (as amended from time to
time, the "Credit Agreement")
----------------
We hereby give notice pursuant to Section 2.04 of the
Credit Agreement that we request Money Market Quotes for the following
proposed Money Market Borrowing(s):
Date of Borrowing: ____________________
Principal Amount: (1) ____________________
Interest Period: (2) ____________________
[Borrower: ____________________]
Such Money Market Quotes should offer a Money Market
[Margin] [Absolute Rate]. [The applicable base rate is the LIBO Rate.]
Terms used herein have the meanings assigned to them in
the Credit Agreement.
ANHEUSER-BUSCH COMPANIES, INC.
By _________________________________
Name:
Title:
<FN>
- ---------
(1) Amount must be $10,000,000 or a larger multiple of $1,000,000.
(2) Not less than 7 days, subject to the provisions of the definition of
Interest Period.
Form of Money Market Quote Report
---------------------------------
<PAGE>
<PAGE>
EXHIBIT C
Form of Invitation for Money Market Quotes
------------------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes to Anheuser-Busch Companies, Inc.
(the "Company")
-------
Pursuant to Section 2.04 of the Credit Agreement dated as of August
4, 2003, among the Company, the Banks party thereto and the undersigned, as
Administrative Agent, we are pleased on behalf of the Company to invite you
to submit Money Market Quotes to the Company for the following proposed
Money Market Borrowing(s):
Date of Borrowing: ____________________
Principal Amount: ____________________
Interest Period: ____________________
[Borrower: ____________________]
Such Money Market Quotes should offer a Money Market
[Margin][Absolute Rate]. [The applicable base rate is the LIBO Rate.]
Please respond to this invitation by no later than [9:30 a.m.]
[10:00 a.m.] (New York City time) on [date].
JP MORGAN CHASE BANK
By ___________________________________
Name:
Title:
Form of Invitation for Money Market Quote
-----------------------------------------
<PAGE>
<PAGE>
EXHIBIT D
Form of Money Market Quote
--------------------------
JP MORGAN CHASE BANK,
as Administrative Agent
270 Park Avenue
New York, New York 10017
Attention:
Re: Money Market Quote to Anheuser-Busch Companies, Inc.
(the "Company")
-------
In response to your invitation on behalf of the Company
dated ____________, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: _______________________________________________
2. Person to contact at Quoting Bank: __________________________
3. Date of Borrowing: __________________________________________(3)
4. We hereby offer to make Money Market Loan(s) in the following
principal amounts, for the following Interest Periods and at the following
rates:
<FN>
- ---------
(3) As specified in the related Invitation.
Form of Money Market Quote
--------------------------
<PAGE>
<PAGE>
2
<TABLE>
<CAPTION>
Principal Interest [Money Market
Amount(4) Period(5) Margin(6)] [Absolute Rate(7)]
--------- --------- ---------- ------------------
<S> <C> <C> <C>
$
$
</TABLE>
[Provided, that the aggregate principal amount of Money Market Loans for
which the above offers may be accepted shall not exceed $__________.]
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the
Credit Agreement dated as of August 4, 2003, among the Company, the Banks
party thereto and yourselves, as Administrative Agent, irrevocably obligate
us to make the Money Market Loan(s) for which any offer(s) are accepted, in
whole or in part.
Very truly yours,
[NAME OF BANK]
Dated: ________________ By
--------------------------------
Name:
Title:
<FN>
- ---------
(4) Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the
individual offers exceeds the amount the Bank is willing to lend. Bids
must be made for $10,000,000 or a larger multiple of $1,000,000.
(5) Not less than 7 days, as specified in the related Invitation. No more
than five bids are permitted for each Interest Period.
(6) Margin over or under the LIBO Rate determined for the applicable
Interest Period. Specify percentage (to the nearest 1/10,000th of 1%)
and specify whether "PLUS" or "MINUS".
(7) Specify rate of interest per annum (expressed to 1/10,000th of 1%).
Notice of Money Market Borrowing
--------------------------------
<PAGE>
<PAGE>
EXHIBIT E
Notice of Money Market Borrowing
--------------------------------
JP MORGAN CHASE BANK,
as Administrative Agent
270 Park Avenue
New York, New York 10017
Attention:
Re: Money Market Quotes to
Anheuser-Busch Companies, Inc.
Pursuant to Section 2.04 of the Credit Agreement dated as
of August 4, 2003 (as amended from time to time, the "Credit Agreement"),
----------------
among the undersigned, the Banks party thereto and JPMorgan Chase Bank, as
Administrative Agent, and in response to the Money Market Quotes dated
___________ and obtained by you on our behalf, we hereby accept the
following Money Market Quote(s) on the following terms:
1. Quoting Bank: _________________________________________________
2. Person to contact at Quoting Bank: ____________________________
3. Date of Borrowing: ____________________________________________
4. We hereby accept Money Market Loan(s) in the following principal
amounts, for the following Interest Periods, and at the following rates: (8)
<FN>
- ---------
(8) Acceptance may only be made on the basis of ascending Money Market
Absolute Rates or Money Market Margins, as the case may be.
Notice of Money Market Borrowing
--------------------------------
<PAGE>
<PAGE>
2
<TABLE>
<CAPTION>
[Money Market
Principal Amount(9) Interest Period(10) Margin(11)] [Absolute Rate(12)]
- ------------------- ------------------- ----------- -------------------
<S> <C> <C> <C>
$
$
</TABLE>
Terms used herein have the meanings assigned to them in
the Credit Agreement.
ANHEUSER-BUSCH COMPANIES, INC.
By
------------------------------------
Name:
Title:
<FN>
- ---------
(9) Principal amount accepted for each Interest Period may not exceed
principal amount requested. Acceptances must be in the amount of
$10,000,000 or a larger multiple of $1,000,000.
(10) As specified in the related Money Market Quote.
(11) Margin above or below (as specified) the applicable LIBO Rate,
expressed as a percentage to be added to or subtracted from such base
rate.
(12) Rate of interest per annum, as specified in the related Money Market
Quote.
Notice of Money Market Borrowing
--------------------------------
<PAGE>
<PAGE>
EXHIBIT F
Opinion of Associate General Counsel of the Company
314/577-3298
FAX 314/577-0776
thomas.larson@anheuser-busch.com
August 4, 2003
TO THE BANKS AND THE ADMINISTRATIVE AGENT
Referred to below
c/o JPMorgan Chase Bank
270 Park Avenue
New York, New York 10017
Re: Credit Agreement dated as of August 4, 2003 among
Anheuser-Busch Companies, Inc., the Banks listed therein
and JPMorgan Chase Bank, as Administrative Agent ("Credit
Agreement")
Ladies and Gentlemen:
I am an Associate General Counsel of Anheuser-Busch
Companies, Inc., a Delaware corporation ("ABC"), and have represented ABC in
connection with its execution and delivery of the Credit Agreement. Unless
otherwise indicated, terms used herein shall have the meanings assigned to
them in the Credit Agreement. This opinion letter is limited to the laws of
the State of New York, the corporate law of the State of Delaware and the
federal law of the United States.
I have examined such documents, records and matters of law
and have made such inquiries as I have deemed necessary for purposes of this
opinion letter, and based thereupon I am of the opinion that:
(1) ABC is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware with the requisite corporate power and authority to
conduct its businesses as now being conducted and to execute,
deliver and perform its obligations under the Credit Agreement.
(2) ABC has duly authorized, executed and delivered the
Credit Agreement, and the Credit Agreement constitutes a valid and
binding obligation of ABC, enforceable against ABC in accordance
with its terms, except as such enforceability may be limited by
bankruptcy and other similar laws affecting creditors' rights
generally as in effect from time to time and general principles of
equity (whether considered in a proceeding in equity or at law).
Opinion of Associate General Counsel of the Company
---------------------------------------------------
<PAGE>
<PAGE>
Page 2
(3) The execution and delivery by ABC, and the performance
of its obligations under, the Credit Agreement do not conflict with
its charter, bylaws, or any applicable law (including without
limitation the provisions of Regulation U or X of the Board of
Governors of the Federal Reserve System) or any judgment, order,
decree or injunction known to me of any governmental body and will
not constitute a default or create any Lien on any asset of the
Company or its Subsidiaries under any indenture, mortgage or other
agreement or instrument known to me to which ABC or any of its
property is bound.
(4) ABC is not required to obtain any consent or approval
from, or make any filing with, any governmental agency in
connection with its execution and delivery of, or the performance
of its obligations under, the Credit Agreement.
(5) There is no litigation, governmental proceeding,
action, suit or arbitration pending or, to my knowledge, threatened
against ABC or any of its Subsidiaries that would reasonably be
expected to have a material adverse effect on the validity or
enforceability of the Credit Agreement, the ability of ABC to
perform its obligations thereunder or upon the consolidated
financial position of ABC.
(6) ABC is not an "investment company" or a company
"controlled" by an "investment company" as such terms are defined
in the Investment Company Act of 1940, as amended.
This opinion letter is furnished by me, as counsel for
ABC, in connection with the execution and delivery of the Credit Agreement,
upon the understanding that I am not otherwise assuming any professional
responsibility.
Very truly yours,
Thomas Larson
Associate General Counsel
Opinion of Associate General Counsel of the Company
---------------------------------------------------
<PAGE>
<PAGE>
EXHIBIT G
[Opinion of Special New York Counsel to JPMorgan Chase Bank]
August 4, 2003
To the Banks that are parties to the
Credit Agreement referred to below and
JPMorgan Chase Bank, as Administrative
Agent for such Banks (the "Administrative
Agent")
Ladies and Gentlemen:
We have acted as special New York counsel to JPMorgan
Chase Bank ("JPMorgan Chase") in connection with the Credit Agreement dated
as of August 4, 2003 (the "Credit Agreement") among Anheuser-Busch
Companies, Inc. (the "Company"), the financial institutions referred to as
"Banks" in the Credit Agreement (the "Banks") and JPMorgan Chase Bank, as
Administrative Agent. Terms defined in the Credit Agreement have the same
respective defined meanings when used herein.
In rendering the opinions expressed below, we have
examined an executed counterpart of the Credit Agreement. In our
examination, we have assumed the genuineness of all signatures, the
authenticity of the Credit Agreement and the conformity with the authentic
Credit Agreement of any copies thereof. When relevant facts were not
independently established, we have relied upon representations made in or
pursuant to the Credit Agreement. We have also assumed that the Credit
Agreement has been duly authorized, executed and delivered by, and (except
to the extent set forth below, as to the Company) constitutes a legal,
valid, binding and enforceable obligation of, all of the parties thereto,
that all signatories thereto have been duly authorized and that all such
parties are duly organized and validly existing and have the power and
authority (corporate or other) to execute, deliver and perform the same.
Based upon and subject to the foregoing and subject also
to the comments and qualifications set forth below, and having considered
such questions of law as we have deemed necessary as a basis for the
opinions expressed below, we are of the opinion that the Credit Agreement
constitutes a legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and except as the enforceability of the
Credit Agreement is subject to the application of general principles of
equity (regardless of whether considered in a proceeding in equity or at
law), including without limitation (i) the possible unavailability of
specific performance, injunctive relief or any other equitable remedy and
(ii) concepts of materiality, reasonableness, good faith and fair dealing.
Opinion of Special New York Counsel to JPMorgan Chase Bank
----------------------------------------------------------
<PAGE>
<PAGE>
Page 2
The foregoing opinions are also subject to the following
comments and qualifications:
(A) The enforceability of provisions in the Credit
Agreement to the effect that terms may not be waived or modified
except in writing may be limited under certain circumstances.
(B) The enforceability of Section 10.03(b) of the Credit
Agreement may be limited by laws limiting the enforceability of
provisions exculpating or exempting a party from, or requiring
indemnification of a party for, liability for its own action or
inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
(C) Section 9.02 of the Credit Agreement may not be
enforceable to the extent that the obligations of any Eligible
Subsidiary under the Credit Agreement are materially modified.
(D) We express no opinion as to (i) the effect of the laws
of any jurisdiction in which any Bank is located (other than New
York) that limits the interest, fees or other charges it may impose
for the loan or use of money or other credit, (ii) the last
sentence of Section 10.04 of the Credit Agreement, (iii) the second
sentence of Section 10.08 of the Credit Agreement insofar as such
sentence relates to the subject-matter jurisdiction of the United
States District Court for the Southern District of New York to
adjudicate any controversy related to the Credit Agreement, and
(iv) the waiver of inconvenient forum set forth in the last
sentence of Section 10.08 of the Credit Agreement with respect to
proceedings in any Federal Court.
(E) We point out with reference to obligations stated to
be payable in a currency other than U.S. Dollars that (i) a New
York statute provides that a judgment rendered by a court of the
State of New York in respect of an obligation denominated in any
such other currency would be rendered in such other currency and
would be converted into U.S. Dollars at the rate of exchange
prevailing on the date of entry of such judgment and (ii) a
judgment rendered by a Federal court sitting in the State of New
York in respect of an obligation denominated in any such other
currency may be expressed in U.S. Dollars, but we express no
opinion as to the rate of exchange such Federal court would apply.
The foregoing opinions are limited to matters involving
the Federal laws of the United States and the law of the State of New York,
and we do not express any opinion as to the law of any other jurisdiction.
Opinion of Special New York Counsel to JPMorgan Chase Bank
----------------------------------------------------------
<PAGE>
<PAGE>
Page 3
This opinion letter is provided to you by us as special
New York counsel to JPMorgan Chase Bank pursuant to Section 3.02(b) of the
Credit Agreement and may not be relied upon by any other person or for any
purpose other than in connection with the transactions contemplated by the
Credit Agreement without our prior written consent in each instance.
Very truly yours,
MJB/WJM
Opinion of Special New York Counsel to JPMorgan Chase Bank
----------------------------------------------------------
<PAGE>
<PAGE>
EXHIBIT H
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of
August 4, 2003 (as amended from time to time, the "Credit Agreement"), among
----------------
Anheuser-Busch Companies, Inc., the Banks named therein and JPMorgan Chase
Bank, as Administrative Agent for said Banks. Terms defined in the Credit
Agreement are used herein with the same meanings.
The Assignor named below hereby sells and assigns, without
recourse, to the Assignee named below, and the Assignee hereby purchases and
assumes, without recourse, from the Assignor, effective as of the Assignment
Date set forth below, the interests set forth below (the "Assigned
--------
Interest") in the Assignor's rights and obligations under the Credit
- --------
Agreement, including the interests set forth below in the Commitment of the
Assignor on the Assignment Date and the Loans owing to the Assignor which
are outstanding on the Assignment Date, together with unpaid interest
accrued on the assigned Loans to the Assignment Date, the participations in
Letters of Credit, LC Disbursements and Swingline Loans held by the Assignor
on the Assignment Date, and the amount, if any, set forth below of the fees
accrued to the Assignment Date for account of the Assignor. The Assignee
hereby acknowledges receipt of a copy of the Credit Agreement. From and
after the Assignment Date (i) the Assignee shall be a party to and be bound
by the provisions of the Credit Agreement and, to the extent of the
interests assigned by this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder and (ii) the Assignor shall, to the extent
of the interests assigned by this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with, if the Assignee is not already a Bank
under the Credit Agreement, an Administrative Questionnaire in the form
supplied by the Administrative Agent, duly completed by the Assignee. The
[Assignee/Assignor] shall pay the fee payable to the Administrative Agent
pursuant to Section 10.06(c) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and
construed in accordance with the law of the State of New York.
Form of Assignment and Acceptance
---------------------------------
<PAGE>
<PAGE>
-2-
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment:
("Assignment Date"):
---------------
Principal Amount
Assigned (and identifying
information as to individual
Negotiated Rate Loans and Money
Market Loans)
------------
Commitment Assigned:
$
Syndicated Loans:
Negotiated Rate Loans:
Money Market Loans:
Fees Assigned (if any):
Form of Assignment and Acceptance
---------------------------------
<PAGE>
<PAGE>
-3-
The terms set forth above and below are hereby agreed to:
[NAME OF ASSIGNOR] , as Assignor
------------------------
By:_________________________
Name:
Title:
[NAME OF ASSIGNEE] , as Assignee
------------------------
By:_________________________
Name:
Title:
The undersigned hereby consent to the within assignment:(13)
ANHEUSER-BUSCH COMPANIES, INC.
By:_________________________
Name:
Title:
JPMORGAN CHASE BANK,
as Administrative Agent
By:_________________________
Name:
Title:
<FN>
- ---------
(13) Consents to be included to the extent required by Section 10.06(c) of
the Credit Agreement.
Form of Assignment and Acceptance
---------------------------------
<PAGE>
<PAGE>
-4-
[NAME OF ISSUING BANK],
as Issuing Bank
By:_________________________
Name:
Title:
[NAME OF SWINGLINE BANK],
as Swingline Bank
By:__________________________
Name:
Title:
Form of Assignment and Acceptance
---------------------------------
<PAGE>
<PAGE>
EXHIBIT I
FORM OF ELECTION TO PARTICIPATE
-------------------------------
[Date]
JPMORGAN CHASE BANK,
as Administrative Agent
for the Banks named in the Credit Agreement
dated as of August 4, 2003 (as amended from
time to time, the "Credit Agreement") among
----------------
Anheuser-Busch Companies, Inc., such Banks
and such Administrative Agent
Dear Sirs:
Reference is made to the Credit Agreement described above.
Terms not defined herein which are defined in the Credit Agreement have for
the purposes hereof the meanings provided therein.
The undersigned, [name of Eligible Subsidiary], a
[jurisdiction of incorporation] corporation, elects to be an Eligible
Subsidiary for purposes of the Credit Agreement, effective from the date
hereof until an Election to Terminate shall have been delivered on behalf of
the undersigned in accordance with the Credit Agreement. The undersigned
confirms that the representations and warranties set forth in Section 4.02
of the Credit Agreement are true and correct as to the undersigned as of the
date hereof, and the undersigned agrees to perform all the obligations of an
Eligible Subsidiary under, and to be bound in all respects by the terms of,
the Credit Agreement, as if the undersigned were a signatory party thereto.
The undersigned further acknowledges and agrees that the Company will act as
exclusive agent of and attorney-in-fact for the undersigned for all purposes
of the Credit Agreement, and in such capacity as agent the Company will have
the exclusive authority to provide notices under the Credit Agreement with
respect to any loans to be made to the undersigned. The undersigned shall be
bound by all agreements and actions entered into or taken by the Company
under or pursuant to the Credit Agreement. The appointment by the
undersigned of the Company to act as its agent and attorney-in-fact is
irrevocable, and the undersigned agrees to assume all risk of keeping itself
informed of the actions of the Company under the Credit Agreement, with the
understanding that the Administrative Agent and the Banks will be relying on
the foregoing in advancing Loans under the Credit Agreement.
Form of Election to Participate
-------------------------------
<PAGE>
<PAGE>
-2-
This instrument shall be construed in accordance with and
governed by the law of the State of New York.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By
-----------------------------------------
Name:
Title:
The undersigned confirms that [name of Eligible
Subsidiary] is an Eligible Subsidiary for purposes of the Credit Agreement
described above.
ANHEUSER-BUSCH COMPANIES, INC.
By
-----------------------------------------
Name:
Title:
Receipt of the above Election to Participate is
acknowledged on and as of the date set forth above.
JPMORGAN CHASE BANK,
as Administrative Agent
By
-----------------------------------------
Name:
Title:
Form of Election to Participate
-------------------------------
<PAGE>
<PAGE>
EXHIBIT J
FORM OF ELECTION TO TERMINATE
-----------------------------
[Date]
JPMORGAN CHASE BANK,
as Administrative Agent
for the Banks named in the Credit Agreement
dated as of August 4, 2003 (as amended from
time to time, the "Credit Agreement") among
----------------
Anheuser-Busch Companies, Inc., such Banks
and such Administrative Agent
Dear Sirs:
Reference is made to the Credit Agreement described above.
Terms not defined herein which are defined in the Credit Agreement have for
the purposes hereof the meanings provided therein.
The undersigned, Anheuser-Busch Companies, Inc., a
Delaware corporation, elects to terminate the status of [name of Eligible
Subsidiary], a [jurisdiction of incorporation] corporation (the "Designated
----------
Subsidiary"), as an Eligible Subsidiary for purposes of the Credit
- ----------
Agreement, effective as of the date hereof. The undersigned represents and
warrants that all principal and interest on the Loans to the Designated
Subsidiary and all other amounts payable by such Designated Subsidiary
pursuant to the Credit Agreement have been paid in full on or prior to the
date hereof. Notwithstanding the foregoing, this Election to Terminate shall
not affect any obligation of the Designated Subsidiary under the Credit
Agreement heretofore incurred.
This instrument shall be construed in accordance with and
governed by the law of the State of New York.
Very truly yours,
ANHEUSER-BUSCH COMPANIES, INC.
By
-----------------------------------------
Name:
Title:
Form of Election to Terminate
-----------------------------
<PAGE>
<PAGE>
2
Receipt of the above Election to Terminate is hereby
acknowledged on and as of the date set forth above.
JPMORGAN CHASE BANK,
as Administrative Agent
By
-----------------------------------------
Name:
Title:
Form of Election to Terminate
-----------------------------
<PAGE>
<PAGE>
SCHEDULE I
COMMITMENTS
-----------
BANK COMMITMENT
---- ----------
JPMorgan Chase Bank $250,000,000
Bank One, NA 250,000,000
Bank of America, N.A. 175,000,000
Citibank, N.A. 175,000,000
USB AG 175,000,000
Merrill Lynch Bank USA 175,000,000
Morgan Stanley Bank 175,000,000
Sun Trust Bank 175,000,000
Mellon Bank, N.A. 75,000,000
State Street Bank and Trust Company 75,000,000
Barclays Bank PLC 50,000,000
BNP Paribas 50,000,000
Mizuho Corporate Bank, LTD 50,000,000
Sumitomo Mitsui Banking Corporation 50,000,000
U.S. Bank National Association 50,000,000
Wells Fargo Bank, N.A. 50,000,000
TOTAL 2,000,000,000
Commitments
-----------
<PAGE>
<PAGE>
SCHEDULE 4.01(k)
UNRESTRICTED SUBSIDIARIES
Anheuser-Busch Asia, Inc.
Anheuser-Busch Australia Limited
Anheuser-Busch Brasil Holdings, Ltd.
Anheuser-Busch Canada, Inc.
Anheuser-Busch Distributors of New York, Inc.
Anheuser-Busch Entertainment Limited
Anheuser-Busch Europe, Inc.
Anheuser-Busch Europe Limited
Anheuser-Busch Florida Investment Capital Corporation
Anheuser-Busch Import Investment, Inc.
Anheuser-Busch Impact Investments, Inc.
Anheuser-Busch International Holdings, Inc.
Anheuser-Busch International Holdings, Inc. Chile I Limitada
Anheuser-Busch International Holdings, Inc. Chile II Limitada
Anheuser-Busch International, Inc.
Anheuser-Busch Investments, S.L.
Anheuser-Busch Latin American Development Corporation
Anheuser-Busch Mexico, Inc.
Anheuser-Busch Oversea Holdings, L.L.C.
Anheuser-Busch Packaging Group, Inc.
Anheuser-Busch River North Investment Capital Corporation
Anheuser-Busch Sales of Hawaii, Inc.
Anheuser-Busch Sales of South Bay, Inc.
Anheuser-Busch San Diego Wholesaler Development Corp.
Unrestricted Subsidiaries
-------------------------
<PAGE>
<PAGE>
2
Anheuser-Busch Spanish Holdings, Inc.
Anheuser-Busch Wholesaler Development Corporation
Anheuser-Busch Wholesaler Development Corporation III
Anheuser-Busch Wholesaler Development Corporation IV
Anheuser-Busch Wisconsin Investment Capital Corporation
Anheuser-Busch World Trade, Ltd.
August A. Busch & Co. of Massachusetts, Inc.
Baci Holdings, Inc.
Baci of Delaware, Inc.
Baci, Inc.
Bannon Corporation
BARI-Canada, Inc.
Bevo Music, Inc.
Boardwalk and Baseball, Inc.
Bow Tie Music, Inc.
Budweiser Brazil Ltda.
Budweiser Philippines, Inc.
Budweiser Wuhan International Brewing Company Limited
Busch Agricultural Resources International, Inc.
Busch Entertainment Corporation
Busch International Sales Corp.
Busch Investment Corporation
Busch Mechanical Services, Inc.
Busch Media Group, Inc.
Busch Properties of Florida, Inc.
Busch Properties, Inc.
Unrestricted Subsidiaries
-------------------------
<PAGE>
<PAGE>
3
Civic Center Corporation
Coleridge Corporation
Consolidated Farms, Inc.
Eagle Snacks, Inc.
Fairfield Transport, Inc.
Garrard Holding Co.
Garrard Leasing Company
Glass Container Corporation
HSH of Orlando, Inc.
ILH Company
Innoven IV Corporation
Kingsmill Realty, Inc.
Langhorne Food Services Inc.
Litchfield Development Corporation
Manufacturers Cartage Company
Manufacturers Railway Company
MRS Redevelopment Corporation
MRS Transport Company
Nutri Turf, Inc.
PBP, Inc.
Pestalozzi Street Insurance Company, Ltd.
Promociones y Desarollos Mexico de Mexicali
PSB, Inc.
Puget Sound Beverages, Inc.
SeaWorld of Florida, Inc.
SeaWorld of Texas, Inc.
Unrestricted Subsidiaries
-------------------------
<PAGE>
<PAGE>
4
SeaWorld, Inc.
SFKBPP, Inc.
Somerset Distributors, LLC
Stag Brewing Company Limited
St. Louis Refrigerator Car Company
Tune Out Music, Inc.
Wholesaler Equity Development Corporation
Williamsburg Transport, Inc.
Unrestricted Subsidiaries
-------------------------
<PAGE>
<PAGE>
SCHEDULE 5.01(b)
Permitted Liens
---------------
NONE
Permitted Liens
---------------
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-12
<SEQUENCE>6
<FILENAME>exh12.txt
<TEXT>
<PAGE>
EXHIBIT 12
ANHEUSER-BUSCH COMPANIES, INC.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's ratio of earnings to fixed
charges, on a consolidated basis for the periods indicated ($ in millions).
<TABLE>
<CAPTION>
2003 2002 2001 2000 1999
----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Earnings
- --------
Consolidated pretax income $2,824.3 $2,623.6 $2,377.6 $2,179.9 $2,007.6
Dividends received from equity investees 169.2 46.7 25.8 23.9 2.9
Net interest capitalized 3.3 10.8 1.0 (5.6) 9.8
Fixed charges 442.6 406.8 402.8 385.1 343.8
----------------------------------------------------------------------
Adjusted earnings $3,439.4 $3,087.9 $2,807.2 $2,583.3 $2,364.1
----------------------------------------------------------------------
Fixed Charges
- -------------
Interest expense $401.5 $368.7 $361.2 $348.2 $307.8
Interest portion of rent expense (1) 36.3 34.1 37.9 33.2 32.2
Amortization of deferred debt issuance costs 4.8 4.0 3.7 3.7 3.8
----------------------------------------------------------------------
Total fixed charges $442.6 $406.8 $402.8 $385.1 $343.8
----------------------------------------------------------------------
Ratio of Earnings to Fixed Charges 7.8 7.6 7.0 (2) 6.7 6.9
======================================================================
<FN>
(1) The interest portion of rent expense is calculated as one-third of total
rents paid.
(2) The ratio for 2001 includes the gain from the sale of SeaWorld
Cleveland, which increased consolidated pretax income by $17.8 million.
Excluding this one-time gain, the ratio would have been 6.9.
</TABLE>
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-13
<SEQUENCE>7
<FILENAME>exh13.txt
<TEXT>
<PAGE>
Exhibit 13
MANAGEMENT'S DISCUSSION AND
ANALYSIS OF OPERATIONS AND
FINANCIAL CONDITION
ANHEUSER-BUSCH COMPANIES AND SUBSIDIARIES
INTRODUCTION
This discussion summarizes the significant factors affecting the
consolidated operating results, financial condition, liquidity and cash
flows of Anheuser-Busch Companies, Inc. for the three-year period ended
December 31, 2003. This discussion should be read in conjunction with the
consolidated financial statements and notes to the consolidated financial
statements included in this annual report.
This discussion contains forward-looking statements regarding the
company's expectations concerning its future operations, earnings and
prospects. On the date the forward-looking statements are made, the
statements represent the company's expectations, but the company's
expectations concerning its future operations, earnings and prospects may
change. The company's expectations involve risks and uncertainties (both
favorable and unfavorable) and are based on many assumptions that the
company believes to be reasonable, but such assumptions may ultimately prove
to be inaccurate or incomplete, in whole or in part. Accordingly, there can
be no assurances that the company's expectations and the forward-looking
statements will be correct. Important factors that could cause actual
results to differ (favorably or unfavorably) from the expectations stated in
this discussion include, among others, changes in the pricing environment
for the company's products; changes in U.S. demand for malt beverage
products; changes in consumer preference for the company's malt beverage
products; regulatory or legislative changes, including changes in beer
excise taxes at either the federal or state level; changes in the litigation
to which the company is a party; changes in raw materials prices; changes in
packaging materials costs; changes in interest rates; changes in foreign
currency exchange rates; unusual weather conditions that could impact beer
consumption in the U.S.; changes in attendance and consumer spending
patterns for the company's theme park operations; changes in demand for
aluminum beverage containers; changes in the company's international beer
business or in the beer business of the company's international equity
partners; changes in the company's credit rating resulting from future
acquisitions or divestitures; and the effect of stock market conditions on
the company's share repurchase program. Anheuser-Busch disclaims any
obligation to update any of these forward-looking statements.
OBJECTIVES
Anheuser-Busch remains focused on its three core objectives designed to
enhance shareholder value:
o Increasing domestic beer segment volume and per barrel profitability
that, when combined with continued market share growth, will provide
the base for long-term double-digit earnings per share growth and
improvement in return on capital employed.
o Increasing international beer segment profit growth. The company has
made significant marketing investments to build recognition of the
Budweiser brands outside the United States and owns and operates
breweries in China and the United Kingdom. The company also has a 50%
equity position in Grupo Modelo, Mexico's largest brewer and producer
of the Corona brand; a 20% equity position in Compania Cervecerias
Unidas (CCU), the largest brewer in Chile; and a 9.9% equity position
in Tsingtao, the largest brewer in China and producer of the Tsingtao
brand, with an agreement to eventually acquire a 27% economic interest.
o Continued growth in profit and free cash flow in the packaging and
entertainment segments. Packaging operations provide significant
efficiencies, cost savings and quality assurance for domestic beer
operations. Entertainment operations enhance the company's corporate
image by showcasing Anheuser-Busch's heritage, values and commitment to
quality and social responsibility to approximately 20 million visitors
annually.
OPERATING RESULTS
Led by continued growth in both domestic and international beer operations,
Anheuser-Busch had another excellent year in 2003, selling 111 million
barrels of its beer brands worldwide and achieving its 21st consecutive
quarter of solid double-digit earnings per share growth in the fourth
quarter. The company's proven ability to leverage its substantial
competitive strengths has led to these consistently strong results. The beer
pricing environment remains favorable and the combination of revenue per
barrel growth and volume increases has driven continued increases in profit
margins and return on capital employed. For the full year 2003, gross margin
increased 20 basis points to 40.3%, while operating margin increased 60
basis points to 22.6%. Return on capital employed improved to 18.4%, an
increase of 90 basis points over the past 12 months.
Anheuser-Busch looks forward to 2004 with outstanding brands, solid
sales execution, a favorable industry pricing environment and a strong
financial position. The company remains confident in its ability to
consistently achieve its minimum double-digit earnings per share growth
objective over the long-term, and reiterates its previously stated 12%
earnings per share growth target for 2004.
26 ANHEUSER-BUSCH COMPANIES, INC. 2003 ANNUAL REPORT
<PAGE>
<PAGE>
Effective in the first quarter 2002, the company ceased amortizing
goodwill in accordance with FAS No. 142, "Goodwill and Other Intangible
Assets." The impact of goodwill amortization on 2001 net income and diluted
earnings per share was $35.8 million and $.04, respectively. Had goodwill
amortization ceased on January 1, 2001, net income for 2001 would have been
$1.74 billion and diluted earnings per share would have been $1.93.
Comparisons of key operating results for the last three years are
summarized in the following tables. As noted above, due to the adoption of
FAS 142, operating results for 2003 and 2002 do not reflect any goodwill
amortization expense. Per the requirements of FAS 142, Anheuser-Busch did
not restate the results of operations for 2001 or 2000 to exclude goodwill
amortization, so results for those years include the impact of goodwill
expense. The absence or presence of goodwill amortization expense in the
operating results for the years shown makes direct comparison between
operating results more difficult.
Therefore, for the clearest understanding of the company's operations,
the analysis of operating results for 2002 vs. 2001 is based on 2001 results
provided on a comparable basis, which exclude the impact of goodwill
amortization. Discussions of operating results for 2001 vs. 2000 are already
on a similar basis, as the results for both years include goodwill
amortization expense.
Comparison of Operating Results
Year Ended December 31 (in millions, except per share)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
2003 2002 2003 vs. 2002
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Gross sales $16,320 $15,687 up $633 up 4.0%
Net sales $14,147 $13,566 up $581 up 4.3%
Income before income taxes $ 2,824 $ 2,624 up $200 up 7.7%
Equity income, net of tax $ 345 $ 352 down $ 7 down 1.9%
Net income $ 2,076 $ 1,934 up $142 up 7.4%
Diluted earnings per share $ 2.48 $ 2.20 up $.28 up 12.7%
- -------------------------------------------------------------------------------------
<CAPTION>
- -------------------------------------------------------------------------------------
2002 vs. 2001
------------------------
Reported Comparable
2002 2001 Basis Basis*
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Gross sales $15,687 $14,973 up 4.8% up 4.8%
Net sales $13,566 $12,912 up 5.1% up 5.1%
Income before income taxes $ 2,624 $ 2,378 up 10.3% up 9.6%
Equity income, net of tax $ 352 $ 254 up 38.3% up 28.2%
Net income $ 1,934 $ 1,705 up 13.4% up 11.1%
Diluted earnings per share $ 2.20 $ 1.89 up 16.4% up 14.0%
- -------------------------------------------------------------------------------------
<FN>
* Excludes goodwill amortization in 2001.
<CAPTION>
- -------------------------------------------------------------------------------------
2001 2000 2001 vs. 2000
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Gross sales $14,973 $14,534 up $439 up 3.0%
Net sales $12,912 $12,499 up $413 up 3.3%
Income before income taxes $ 2,378 $ 2,180 up $198 up 9.1%
Equity income, net of tax $ 254 $ 246 up $ 8 up 3.4%
Net income $ 1,705 $ 1,552 up $153 up 9.9%
Diluted earnings per share $ 1.89 $ 1.69 up $.20 up 11.8%
- -------------------------------------------------------------------------------------
</TABLE>
Provided in the table below for informational purposes are certain 2001
operating measures presented on both an as-reported basis, which includes
goodwill amortization, and on the comparable basis used in the analysis of
2002 vs. 2001 performance throughout Management's Discussion and Analysis,
which excludes goodwill amortization.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
% Change 2002 vs. 2001
2001 2001 ------------------------------
Reported Comparable Reported Comparable
Basis Basis Basis Basis
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Cost of sales $7,950.4 $7,938.9 up 2.3% up 2.4%
Gross profit $4,961.1 $4,972.6 up 9.6% up 9.3%
Gross profit margin 38.4% 38.5% up 1.7 pts. up 1.6 pts.
Marketing, distribution &
administrative expenses $2,255.9 $2,254.2 up 8.8% up 8.9%
Operating income $2,723.0 $2,736.2 up 9.4% up 8.9%
Operating profit margin 21.1% 21.2% up 0.9 pts. up 0.8 pts.
Operating profit margin
excluding gain on sale
of SeaWorld Cleveland -- 21.1% -- up 0.9 pts.
Income before income taxes $2,377.6 $2,393.5 up 10.3% up 9.6%
Domestic beer segment
income before income taxes $2,667.1 $2,671.7 up 9.5% up 9.3%
International beer segment
income before income taxes $ 54.4 $ 55.6 up 39.9% up 36.9%
Packaging segment income
before income taxes $ 107.5 $ 108.3 up 43.3% up 42.2%
Entertainment segment
income before income taxes $ 147.4 $ 141.6 up 3.8% up 8.0%
Equity income $ 254.4 $ 274.3 up 38.3% up 28.2%
Net income $1,704.5 $1,740.3 up 13.4% up 11.1%
Effective tax rate 39.0% 38.7% up 0.7 pts. up 1.0 pts.
Basic earnings per share $ 1.91 $ 1.95 up 16.8% up 14.4%
Diluted earnings per share $ 1.89 $ 1.93 up 16.4% up 14.0%
- --------------------------------------------------------------------------------------------
</TABLE>
SALES
Revenue per barrel reflects the net average sales price the company obtains
from wholesaler customers for its products. The higher the net revenue per
barrel, the greater the company's gross profit dollars and gross profit
margin, with revenue per barrel increases having nearly twice the impact on
profits as comparable percentage increases in beer volume. Revenue per
barrel is calculated as net sales generated by the company's domestic beer
operations on barrels of beer sold, determined on a U.S. GAAP basis, divided
by the volume of beer shipped from the company's breweries.
Anheuser-Busch strives to obtain price increases that approximate, or
are slightly less than, increases in the U.S. Consumer Price Index (CPI)
over time. On a constant dollar basis, beer is more affordable today than it
was 10 years ago, and the company believes its pricing strategy allows for
continuing future moderate price increases. The company also believes that
significant federal excise tax increases (which are not expected) could
disrupt the current favorable industry-pricing environment because it could
trigger retail beer price increases in excess of the CPI. The cost of these
increases would be borne directly by consumers.
ANHEUSER-BUSCH COMPANIES, INC. 2003 ANNUAL REPORT 27
<PAGE>
<PAGE>
Anheuser-Busch's reported domestic sales volume is based on beer sales
to the company's network of independent wholesalers. Higher beer
sales-to-wholesalers volume will increase gross profit dollars and
potentially increase gross profit margin. Wholesaler sales-to-retailers
volume is a leading indicator of demand for the company's products at the
retail level. Higher wholesaler sales-to-retailers require increased beer
sales-to-wholesalers to meet ongoing demand.
In the fourth quarter of 2001, the company changed its presentation of
pass-through finished product delivery costs reimbursed by customers. The
company presents these items separately as sales and cost of sales. These
items were previously offset for zero impact within cost of sales. This
change in presentation had a minor impact on revenue and profit margins
growth, and had no impact on cash flows, operating income, net income and
earnings per share.
Worldwide Anheuser-Busch beer brands volume is composed of domestic
volume and international volume. Domestic volume represents Anheuser-Busch
brands produced and shipped within the United States. International volume
represents exports from the company's U.S. breweries, plus Anheuser-Busch
brands produced overseas by company-owned breweries in China and the United
Kingdom and under various license and contract-brewing agreements. Total
brands sales volume combines worldwide Anheuser-Busch brand volume with the
company's ownership percentage share of volume in its international equity
partners ... Grupo Modelo and CCU.
Worldwide Beer Volume
Total worldwide beer volume results for the three years ended December 31
are summarized in the following table (millions of barrels):
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
2003 2002 Change
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Domestic 102.6 101.8 up 0.8%
International 8.4 8.0 up 5.0%
- ------------------------------------------------------- ---------------------
Worldwide A-B brands 111.0 109.8 up 1.1%
International equity partner brands 18.8 18.1 up 4.0%
- ------------------------------------------------------- ---------------------
Total brands 129.8 127.9 up 1.5%
======================================================= =====================
<CAPTION>
- --------------------------------------------------------------------------------
2002 2001 Change
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Domestic 101.8 99.7 up 2.1%
International 8.0 7.5 up 5.4%
- ------------------------------------------------------- ---------------------
Worldwide A-B brands 109.8 107.2 up 2.3%
International equity partner brands 18.1 17.2 up 5.3%
- ------------------------------------------------------- ---------------------
Total brands 127.9 124.4 up 2.8%
======================================================= =====================
<CAPTION>
- --------------------------------------------------------------------------------
2001 2000 Change
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Domestic 99.7 98.5 up 1.2%
International 7.5 7.1 up 5.6%
- ------------------------------------------------------- ---------------------
Worldwide A-B brands 107.2 105.6 up 1.5%
International equity partner brands 17.2 15.7 up 9.7%(1)
- ------------------------------------------------------- ---------------------
Total brands 124.4 121.3 up 2.6%(1)
======================================================= =====================
<FN>
(1) Normalized to exclude incremental volume contributed by the 2001
acquisition of CCU, equity partner brands volume increased 4.9%, and total
brands volume increased 2.0%, for 2001 vs. 2000.
</TABLE>
Sales*
(IN BILLIONS)
[graph]
Gross Sales Net Sales
- -------------------------------------------------------------------
2003 $16.3 $14.1
2002 $15.7 $13.6
2001 $15.0 $12.9
2000 $14.5 $12.5
1999 $13.9 $11.9
- -------------------------------------------------------------------
<FN>
*The difference between gross and net sales represents beer excise taxes.
Sales -- 2003 vs. 2002
Anheuser-Busch reported record gross sales of $16.3 billion and record net
sales of $14.1 billion in 2003, representing increases of 4%, or $633
million, and 4.3%, or $581 million, respectively, compared to 2002. The
increases in both gross and net sales were principally due to a $410
million, or 3.9% increase in domestic beer segment net sales resulting from
3.1% higher domestic revenue per barrel and a 0.8% increase in beer sales
volume. The increase in revenue per barrel generated $324 million in net
sales improvement and beer volume gains contributed $86 million of the
increase.
In addition to domestic beer sales increases, international beer net
sales increased $55 million, primarily due to volume growth in China and
Canada, packaging segment sales increased $30 million due to higher can
pricing, and entertainment sales increased $65 million on increased ticket
prices, higher in-park spending and slightly higher attendance in 2003. The
difference between gross and net sales represents beer excise taxes of $2.2
billion.
Reflecting the continuing strong pricing environment, domestic revenue
per barrel grew 3.1% for 2003 and enhanced gross and operating profit
margins. For the full year 2003, gross margin increased 20 basis points to
40.3%, while operating margin increased 60 basis points to 22.6%. Return on
capital employed improved to 18.4%, an increase of 90 basis points over the
past 12 months. Consumers trading up to the super premium Michelob family
enhanced the company's revenue per barrel results.
Consistent with the company's practice of implementing moderate annual
price increases in two phases, Anheuser-Busch completed the first stage of
its pricing plan for 2004 in October 2003, in markets representing
approximately 40% of the company's domestic volume. These pricing actions
were again very successful, as reflected in the company's strong fourth
quarter revenue per barrel performance. As planned, the company began
implementing the second stage of 2004 pricing initiatives earlier this year
on just over 25% of domestic volume. As in the past, these revenue
enhancement initiatives are being tailored to specific markets, brands and
packages.
28 ANHEUSER-BUSCH COMPANIES, INC. 2003 ANNUAL REPORT
<PAGE>
<PAGE>
Domestic beer sales-to-wholesalers volume increased 0.8%, to 102.6
million barrels for 2003. These results are due to the outstanding success
of the new Michelob ULTRA low-carbohydrate brand and increased Bud Light
sales volume. Bud Light also continued to grow its share of the premium
light beer category in 2003. Wholesaler sales-to-retailers volume
accelerated through the second half of 2003, increasing 1.7% in the fourth
quarter, and was up 0.9% for the year.
Worldwide Anheuser-Busch beer sales volume increased 1.1% for the year
to 111.0 million barrels and total volume increased 1.5%, to 129.8 million
barrels. International Anheuser-Busch brand beer volume for the year was up
5% vs. 2002, to 8.4 million barrels, principally due to increased beer
volume in China.
The company's domestic market share (excluding exports) for the full
year 2003 was approximately 50%, compared to 49% for the same period in
2002. Domestic market share is based on estimated beer industry sales using
information provided by the Beer Institute and the U.S. Department of
Commerce. The company has led the U.S. brewing industry in sales volume and
market share since 1957.
Sales -- 2002 vs. 2001
Anheuser-Busch achieved gross sales of $15.7 billion and net sales of $13.6
billion in 2002, representing increases of 4.8%, or $714 million, and 5.1%,
or $655 million, respectively, compared to 2001. The increases in gross and
net sales were principally due to a $570 million, or 5.7% increase in
domestic beer segment net sales resulting from higher domestic revenue per
barrel and higher domestic beer sales volume. Revenue per barrel generated
$354 million in net sales improvement, while higher beer volume contributed
$216 million of the increase.
International beer net sales increased $43 million, primarily due to
volume growth in China. Packaging segment net sales were up $24 million due
to higher soft drink can prices and increased volume. Entertainment segment
net sales increased $11 million due to higher ticket prices and increased
in-park spending, partially offset by slightly lower attendance. The
difference between gross and net sales represents beer excise taxes of $2.12
billion.
Domestic beer revenue per barrel grew 3.5% for 2002, reflecting a
favorable domestic pricing environment, and the introductions of Michelob
ULTRA and Bacardi Silver. Excluding favorable mix, domestic revenue per
barrel increased 2.8% for the year. The increases in revenue per barrel
enhanced both gross and operating profit margins, which improved 160 basis
points and 80 basis points, respectively, in 2002 vs. the prior year.
Domestic beer sales-to-wholesalers volume increased 2.1% vs. 2001, to
101.8 million barrels. This increase was led by Bud family sales, as well as
the successful introductions of Bacardi Silver and Michelob ULTRA.
Wholesaler inventories at December 31, 2002 were essentially the same as
inventory levels at the end of 2001. Wholesaler sales-to-retailers volume
was up 1.6% for the year. The company's domestic market share for 2002
(excluding exports) was 49.2% vs. 2001 market share of 48.7%.
Worldwide Anheuser-Busch beer sales volume increased 2.3% in 2002, to
109.8 million barrels. Total beer sales volume was 127.9 million barrels in
2002, up 2.8% vs. 2001. International Anheuser-Busch brand beer volume for
2002 was 8.0 million barrels, an increase of 5.4% vs. 2001. During 2002, the
company's three largest markets outside the U.S. -- Canada, China and the
United Kingdom -- all experienced volume growth.
Sales -- 2001 vs. 2000
Anheuser-Busch reported gross sales of $15.0 billion and net sales of $12.9
billion in 2001, representing increases of 3.0%, or $439 million, and 3.3%,
or $413 million, respectively, compared to 2000. The increases in gross and
net sales were principally due to a $429 million, or 4.5% increase in
domestic beer segment net sales resulting from higher domestic revenue per
barrel and a 1.2% increase in domestic beer sales volume. Revenue per barrel
generated $298 million in net sales improvement, while higher beer volume
contributed $131 million of the increase. Gross and net sales also benefited
from sales increases from the international beer and entertainment segments.
The difference between gross and net sales represents beer excise taxes of
$2.06 billion.
Domestic revenue per barrel grew 3.0% for 2001, reflecting a favorable
pricing environment. Gross and operating profit margins increased 100 and
110 basis points for the year, respectively, compared to 2000.
Domestic beer sales-to-wholesalers volume increased 1.2% for 2001, to
99.7 million barrels, compared to prior year. Wholesaler sales-to-retailers
grew 1.8% for the full year 2001. The Bud family, especially Bud Light, led
the increases in sales to both wholesalers and to retailers. The company's
domestic market share (excluding exports) for 2001 was 48.7%, compared to
market share of 48.5% in 2000.
Worldwide Anheuser-Busch brand sales volume for 2001 grew 1.5%, to
107.2 million barrels, compared to full year 2000. Total brands sales volume
was 124.4 million barrels for the year, up 2.6%. International beer volume,
excluding Modelo and CCU, grew 5.6% for the full year, to 7.5 million
barrels, due primarily to solid volume growth in Canada and China.
ANHEUSER-BUSCH COMPANIES, INC. 2003 ANNUAL REPORT 29
<PAGE>
<PAGE>
COST OF SALES
The company continuously strives to reduce costs throughout its system.
Brewery modernizations have yielded long-term savings through reduced beer
packaging and shipping costs and reduced maintenance costs. The company's
focused production methods and wholesaler support distribution centers
concentrate small-volume brand and package production at three breweries to
create production efficiencies, reduce costs and enhance responsiveness to
changing consumer brand and package preferences. The company also works to
reduce distribution costs through better systemwide coordination with its
network of independent wholesalers.
Cost of sales was $8.4 billion in 2003, an increase of $318 million, or
3.9%, compared to 2002. The increase is due to higher costs in the domestic
beer segment, attributable to costs associated with higher beer sales
volume, higher production costs primarily resulting from increased brewing
and packaging materials and utilities costs. Brewing and packaging materials
costs and utilities were higher in the second half of the year than
experienced in the first half of the year. Cost of sales for international
beer operations also increased due to costs associated with increased beer
volume, while theme park and packaging operations and the company's
commodity recycling business all experienced increased cost of sales. Gross
profit as a percentage of net sales was 40.3% for the year, an increase of
20 basis points versus 2002.
Cost of sales was $8.13 billion in 2002, an increase of $192 million,
or 2.4% vs. 2001. The increase in 2002 was due primarily to higher domestic
beer segment costs, driven by costs associated with higher beer volume of
$78 million, partially offset by lower brewing materials, aluminum and
energy costs. Cost of sales also increased in the international beer
segment, due to costs associated with increased beer volume, and in the
packaging and entertainment businesses. Gross profit as a percentage of
sales was 40.1%, an increase of 160 basis points vs. 2001, reflecting higher
domestic beer margins generated by improved pricing and favorable costs.
Cost of sales for 2001 was $7.95 billion, an increase of 1.5%, or $121
million compared to 2000. The increase is principally due to increased costs
for the domestic beer segment, including costs of $44 million associated
with higher domestic beer volume, higher energy costs and increased
packaging material costs that reflect the impact of start-up costs related
to the company's bottle manufacturing operation in Houston, Texas. Gross
profit as a percentage of net sales was 38.4% for 2001, an increase of 100
basis points compared to 2000 and principally reflected higher domestic beer
margins.
MARKETING, DISTRIBUTION AND ADMINISTRATIVE EXPENSES
Advertising and promotional activities for its beer brands and theme park
operations are important elements of Anheuser-Busch's strategy, and
represent significant annual expenditures. The company employs a variety of
national, regional and local media outlets in its promotional efforts,
including television, radio, print and outdoor advertising and event
sponsorships.
Marketing, distribution and administrative expenses for 2003 were $2.50
billion, an increase of $43 million, or 1.7% compared with 2002. This
increase is principally due to marketing costs related to Michelob ULTRA,
increased company-owned wholesale beer distribution costs, higher
international beer marketing costs in Europe and China, and increased theme
park advertising costs. Partially offsetting these increases were lower
domestic beer segment legal costs and reduced administrative expenses for
the entertainment segment.
Marketing, distribution and administrative expenses of $2.46 billion in
2002 represent an increase of $201 million vs. 2001 expenses, or 8.9%. The
increase is due to higher domestic beer marketing costs for the Bud and
Michelob families, introductory costs and ongoing support for Michelob ULTRA
and Bacardi Silver, increased distribution costs due to the acquisition of a
beer wholesaler in California, higher litigation costs and a $20 million
contribution to the company's charitable foundation.
Marketing, distribution and administrative expenses for 2001 were $2.26
billion, an increase of 3.7%, or $81 million vs. 2000. The increase in these
expenses in 2001 was principally due to higher domestic beer marketing
costs, higher distribution costs related to the acquisition of a wholesaler
in California and higher administrative costs.
OPERATING INCOME
Operating income represents the measure of the company's financial
performance before net interest cost, other nonoperating items and equity
income.
Operating income increased $219 million, or 7.4% in 2003, to $3.2
billion. Operating margin for the year was 22.6%, an increase of 60 basis
points vs. 2002.
Operating income was $2.98 billion in 2002, an increase of $244
million, or 8.9%, vs. 2001. In 2001, the company had operating income of
$2.72 billion, representing a 9.2%, or $228 million, increase over 2000
operating income of $2.49 billion. Operating margin for 2002 was 22.0%, an
increase of 80 basis points vs. 2001. Operating margin in 2001 was 21.1%, a
110 basis point increase over the 2000 margin of 20.0%. Excluding the impact
of the $17.8 million gain on the sale of SeaWorld Cleveland recorded in the
first quarter 2001, operating margin for 2002 and 2001 increased 90 and 100
basis points, respectively.
30 ANHEUSER-BUSCH COMPANIES, INC. 2003 ANNUAL REPORT
<PAGE>
<PAGE>
Increases in operating income and margins for 2003, 2002 and 2001 are
due to higher domestic beer revenue per barrel, increased beer volume and
improved operating results from all business segments.
INTEREST EXPENSE LESS INTEREST INCOME
Interest expense less interest income was $399.8 million for 2003, $367.4
million for 2002 and $360.1 million for 2001, representing increases of
8.8%, 2.0% and 3.7%, respectively, compared to prior years. These increases
primarily result from higher average outstanding debt balances compared to
prior years, partially offset by lower interest rates for all three years.
See the Liquidity and Financial Condition section of this discussion for
additional information regarding the company's leverage philosophy and
specific changes in the company's debt portfolio.
INTEREST CAPITALIZED
Interest capitalized was $24.4 million in 2003, $17.7 million in 2002 and
$26.9 million in 2001. The amount of interest capitalized fluctuates
depending on construction-in-progress balances, which are impacted by the
amount and timing of capital spending, the timing of project completion
dates and by market interest rates. Compared to prior years, capital
spending increased in 2003, declined in 2002 and was essentially flat in
2001. The increase in 2003 and the decrease in 2002 are primarily due to the
deferral of 2002 spending into 2003. As noted in the interest expense
discussion above, interest rates have generally declined for the last three
years.
OTHER INCOME/EXPENSE, NET
Other income/expense, net includes earnings from the company's limited
partnership equity investments in beer wholesalers, in addition to other
items of a nonoperating nature that do not have a material impact on the
company's consolidated results of operations, either individually or in
total. The company had net other income of $400,000 in 2003, and net other
expense of $6.4 million in 2002 and $12.2 million in 2001. In 2003, the
company recognized a $6 million gain from the sale of a company-owned beer
wholesalership in Washington state, and also incurred offsetting amounts
related to expenses associated with the early call of higher interest rate
debt and a gain from the receipt of proceeds from an insurance company.
Income Before Income Taxes
(IN MILLIONS)
[graph]
- ---------------------------------------------------------
2003 $2,824.3
2002 $2,623.6
2001 $2,377.6
2000 $2,179.9
1999 $2,007.6
- ---------------------------------------------------------
INCOME BEFORE INCOME TAXES
Income before income taxes was $2.8 billion in 2003, an increase of $200
million, or 7.7%, vs. 2002. Income before income taxes was $2.62 billion in
2002 and $2.38 billion in 2001, representing increases of $230 million, or
9.6%, and $198 million, or 9.1%, respectively, vs. prior years. Excluding
the impact of the gain on the SeaWorld Cleveland sale in 2001, which better
reflects ongoing operations, pretax income increased 10.4% in 2002 and 8.3%
in 2001.
2003 vs. 2002
The increase in pretax income for 2003 is primarily due
to increased domestic beer segment pretax results, along with improved
profit contribution from all of the company's remaining business segments.
Domestic beer segment pretax income was up 6.8%, reflecting higher revenue
per barrel and increased beer volume. International beer segment pretax
income increased 19%, primarily due to volume and profit growth in China.
Packaging segment pretax profits were up 1% in 2003, primarily due to
improved profits in the company's can, bottle and label manufacturing
operations. Entertainment segment operating profits increased 6.4% compared
to 2002, primarily due to higher admissions pricing and increased in-park
spending.
2002 vs. 2001
Domestic beer pretax income for the year was up 9.3%, to $2.92 billion,
reflecting higher revenue per barrel and increased beer volume.
International beer segment pretax income increased 37% for 2002, primarily
due to volume and profit growth in China. Packaging segment retax profits
were up 42%, primarily due to higher soft drink can prices and volume, along
with a profit contribution from the company's bottle manufacturing operation
in 2002 compared to a loss in the 2001 start-up year. Entertainment segment
pretax profits for the year were up 8% compared to 2001, excluding the $17.8
million gain on the sale of the company's SeaWorld Cleveland theme park in
2001.
ANHEUSER-BUSCH COMPANIES, INC. 2003 ANNUAL REPORT 31
<PAGE>
<PAGE>
2001 vs. 2000
Domestic beer income before income taxes for 2001 was $2.67 billion, an
increase of $185 million, or 7.5% vs. 2000. This increase is due to higher
revenue per barrel and increased beer sales volume. Pretax profit for
international beer increased 86% for 2001 due to volume gains in China and
Canada, along with contributions from the United Kingdom and Ireland. Income
before income taxes for the packaging segment was up 6% for the year,
reflecting reduced manufacturing costs partially offset by lower soft drink
can pricing and the impact of start-up costs related to the company's bottle
manufacturing operation. To indicate underlying operating results only, this
comparison excludes an unfavorable adjustment related to the company's label
manufacturing business in 2000. Reported-basis pretax results for the
packaging segment increased 22% in 2001. Entertainment segment pretax
profits for 2001 increased 14% vs. the prior year primarily due to increased
attendance, increased in-park spending and a full year of Discovery Cove
operations in 2001 vs. a partial year in 2000. To indicate underlying
operating results only, these results exclude the impact of SeaWorld
Cleveland operating results and related gain on the sale of the park.
Including SeaWorld Cleveland, income before income taxes for the segment
increased 29%.
EQUITY INCOME, NET OF TAX
Equity income of $344.9 million in 2003 decreased $7 million vs. 2002,
primarily due to the $17 million one-time deferred income tax benefit
included in 2002 Modelo equity income, partially offset by a $6.5 million
charge in 2002 related to a brewery operation restructuring. The deferred
tax benefit, which resulted from lower Mexican statutory income tax rates
enacted in the first quarter of 2002, was largely offset by higher U.S.
deferred income taxes included in the 2002 consolidated income tax
provision. Equity income growth from Modelo for 2003 was also dampened by
lower export volume growth, Modelo not raising prices in 2003 and a weaker
peso. Anheuser-Busch's equity share of CCU earnings for the full year
benefited by a $5.5 million after tax gain from the sale of a brewery in
Croatia.
Equity income increased 28.2%, to $351.7 million for 2002 vs. 2001.
Equity income of $254.4 million in 2001 represents a 3.4% increase compared
to 2000 equity income of $246.0 million. The increases in equity income in
2002 and 2001 are primarily due to Modelo's underlying volume and earnings
growth. Excluding the impact of the Modelo tax rate benefit and brewery
restructuring charge, equity income on a comparable basis increased 24% in
2002.
INCOME TAXES
The company's effective tax rate of 38.7% in 2003 decreased 100 basis points
vs. the 39.7% rate in 2002, and was level with the comparable basis rate of
38.7% in 2001. The decrease stems from an unusually high effective tax rate
in 2002 due to the U.S. deferred income tax expense offset to the Mexican
income tax rate benefit that was included in equity income and a more
favorable foreign tax credit position in 2003.
The effective tax rate in 2002 was 100 basis points higher than 2001 on
a comparable basis, due to the Modelo deferred tax impact discussed
previously and higher foreign taxes, partially offset by the write-off in
2001 of goodwill associated with the sale of SeaWorld Cleveland.
The reported effective tax rates in 2001 and 2000 were 39.0% and 40.1%,
respectively. The decrease in 2001 was primarily due to lower foreign taxes
partially offset by the write-off of SeaWorld Cleveland goodwill.
In the first quarter 2002, the company began presenting U.S. income
taxes relating to foreign equity investment dividends in the consolidated
income tax provision. The company previously presented these taxes in equity
income. This change in presentation has no impact on net income, earnings
per share or cash flows. For comparability, 2001 information was recast to
conform to the 2002 presentation.
In 2003, the Internal Revenue Service completed its review of the
company's federal tax returns for the years 1999 - 2001. The results of the
IRS review did not have a material impact on Anheuser-Busch's results of
operations, financial position or cash flows.
NET INCOME
Anheuser-Busch net income for 2003 was $2.1 billion, an increase vs. 2002 of
$142 million, or 7.4%. The company earned net income of $1.93 billion in
2002, an increase of $193 million, or 11.1% over 2001. Net income was $1.70
billion in 2001, an increase of 9.9%, vs. 2000 net income of $1.55 billion.
Diluted Earnings Per Share*
[graph]
- ------------------------------------------------------------------------------
2003 $2.48
2002 $2.20
2001 $1.89
2000 $1.69
1999 $1.47
- ------------------------------------------------------------------------------
<FN>
*On a comparable basis, which excludes goodwill amortization, diluted earnings
per share for 2001, 2000 and 1999 would have been $1.93, $1.72 and $1.50,
respectively.
32 ANHEUSER-BUSCH COMPANIES, INC. 2003 ANNUAL REPORT
<PAGE>
<PAGE>
DILUTED EARNINGS PER SHARE
Diluted earnings per share were $2.48 in 2003, an increase of 12.7%, or $.28
compared to 2002 results. Diluted earnings per share were $2.20 for 2002, an
increase of $.27 per share, or 14%, vs. 2001. Diluted earnings per share of
$1.89 for 2001 represent an increase of 11.8% over 2000 earnings per share.
Diluted earnings per share benefit from the company's ongoing share
repurchase program. The company repurchased 39.4 million common shares in
2003, 40.7 million shares in 2002 and 28.2 million shares in 2001. Diluted
earnings per share for 2002 include a two-thirds cent negative impact from
Modelo's brewery restructuring, while the amount reported for 2001 includes
a one-half cent benefit from the sale of SeaWorld Cleveland.
EMPLOYEE-RELATED COSTS
Employee-related costs were $2.19 billion in 2003, an increase of 6.0% vs.
2002 costs. Employee-related costs totaled $2.07 billion in 2002, an
increase of 4.2% vs. 2001 costs of $1.98 billion, which had increased 3.6%
vs. 2000. The changes in employee-related costs primarily reflect normal
increases in salaries, wages and benefit levels. Salaries and wages comprise
the majority of employee-related costs and totaled $1.68 billion in 2003,
$1.63 billion in 2002 and $1.61 billion in 2001, representing increases vs.
prior year of 2.8%, 1.7% and 1.8%, respectively. The remainder of
employee-related costs consists of pension benefits, life insurance, health
care benefits and payroll taxes.
The company had 23,316 full-time employees at December 31, 2003.
Full-time employees numbered 23,176 and 23,432 at the end of 2002 and 2001,
respectively.
Employee-Related Costs
(IN MILLIONS)
[graph]
- ------------------------------------------------------------------------------
2003 $2,189.0
2002 $2,065.8
2001 $1,983.5
2000 $1,915.3
1999 $1,877.0
- ------------------------------------------------------------------------------
OTHER TAXES
In addition to income taxes, the company is significantly impacted by other
federal, state and local taxes, most notably beer excise taxes. Taxes
related to 2003 operations, not including the many indirect taxes included
in materials and services purchased, totaled $3.52 billion, an increase of
3.4% vs. total taxes paid in 2002 of $3.41 billion. These amounts highlight
the burden of taxation on the company and the brewing industry in general.
Taxes paid in 2002 increased 5.8% compared to total taxes in 2001 of $3.22
billion.
Proposals to increase excise taxes on beer are addressed by the company
and the brewing industry every year, and there has been added pressure
recently to increase taxes to help offset state budget deficits.
Anheuser-Busch understands spending cuts or temporary tax increases may be
necessary for states to address budget concerns; however, the company
believes states should accomplish this objective in the most efficient and
least harmful way possible. The company does not believe excise taxes, which
are regressive and primarily burden working men and women, are the solution.
To ensure its views on this important matter are known, company and industry
representatives meet proactively on an ongoing basis with legislators and
administration officials from various states to present arguments against
increases in beer excise taxes.
RETURN ON CAPITAL EMPLOYED
Value for shareholders is created when companies earn rates of return in
excess of their cost of capital. Anheuser-Busch views the rate of return on
capital employed to be a key performance measure because it gauges how
efficiently the company is deploying its capital assets. Also, increases in
the rate are often considered by the investment community to be a strong
driver of stock price, especially in conjunction with earnings per share
growth.
Return on capital employed for 2003 was 18.4%, an increase of 90 basis
points over the 2002 rate of 17.5%. Return on capital employed is computed
as net income for the year plus after-tax net interest (interest expense
less interest capitalized), divided by average net investment. Net
investment is defined as total assets less non-debt current liabilities. For
2003, after-tax net interest expense was $234 million, calculated as pretax
net interest expense of $377 million less income taxes applied using a 38%
tax rate. For 2002, after-tax net interest expense was $218 million,
calculated as pretax net interest expense of $351 million less income taxes
applied at 38%. The return on capital employed ratio measures after-tax
performance, therefore the company must tax-effect net interest cost in the
computation for consistency.
ANHEUSER-BUSCH COMPANIES, INC. 2003 ANNUAL REPORT 33
<PAGE>
<PAGE>
LIQUIDITY AND FINANCIAL CONDITION
Anheuser-Busch's strong financial position allows it to pursue its growth
strategies while providing substantial direct returns to shareholders.
Accordingly, the company has established well-defined priorities for its
available cash:
o Reinvest in core businesses to achieve profitable growth. To enhance
shareholder value, the company will continue to make investments to
improve efficiency and add capacity as needed in its existing
operations, and intends to make selected equity investments in leading
international brewers in higher-growth beer markets.
o Make substantial cash payments directly to shareholders through
consistent dividend growth and the repurchase of common shares. The
company has paid cash dividends in each of the last 70 years, and has
repurchased approximately 3% of outstanding shares annually for over 10
years. In July 2003, Anheuser-Busch announced a change in the company's
dividend policy in reaction to the reduction in the federal tax rate on
corporate dividends enacted earlier in the year. It is the company's
intent to increase dividends per share in line with the company's
earnings per share growth, vs. a prior policy of increasing dividends
per share somewhat less than the growth in earnings per share.
The company considers its ratio of cash flow to total debt to be the
most important measure of ongoing liquidity, and currently targets a ratio
toward the upper end of the 30% to 40% range, in order to maintain its
strong credit ratings of A1 and A+, from Moody's and Standard & Poor's,
respectively. Based on its specific financial position and risk tolerance,
Anheuser-Busch believes a strong Single A rating strikes the best balance
between a low cost-of-capital and maintaining adequate financial
flexibility. The company's ratio of cash flow to total debt was 40.3% in
2003, 39.7% in 2002 and 38.8% in 2001.
Ratio of Cash Flow To Total Debt
[graph]
- ------------------------------------------------------------------------------
2003 40.3%
2002 39.7%
2001 38.8%
2000 41.6%
1999 41.8%
- ------------------------------------------------------------------------------
Sources and Uses of Cash
The company's primary source of liquidity is cash provided by operations.
Principal uses of cash are capital expenditures, share repurchases,
dividends and business investments. Information on the company's
consolidated cash flows for the years 2003, 2002 and 2001 is presented in
the consolidated statement of cash flows (categorized by operating
activities, financing activities and investing activities) and in the
business segments information in Note 15.
Cash generated by each of the company's business segments is projected
to exceed funding requirements for that segment's anticipated capital
expenditures. However, corporate spending on dividend payments and share
repurchases, plus possible additional investments in international brewers,
will require external financing while the company maintains its target cash
flow to total debt ratio. The nature, extent and timing of external
financing will vary depending on the company's evaluation of existing market
conditions and other economic factors. The company uses its share repurchase
program to manage its leverage position, and typically operates at a working
capital deficit as it manages its cash flows. The company had working
capital deficits of $227 million, $283 million and $186 million at December
31, 2003, 2002 and 2001, respectively.
The company made accelerated contributions to its pension plans
totaling $75 million and $201 million, respectively, in the fourth quarters
of 2003 and 2002. Projections indicated Anheuser-Busch would have been
required to contribute these amounts between 2003 and 2005, but chose
instead to make the contributions early in order to enhance the funded
status of the plans.
Operating Cash Flow Before Change In Working Capital
(IN MILLIONS)
[graph]
- ------------------------------------------------------------------------------
2003 $2,938.3
2002 $2,624.3
2001 $2,316.0
2000 $2,230.0
1999 $2,141.6
- ------------------------------------------------------------------------------
Off-Balance-Sheet Obligations, Commitments and Contingencies
Anheuser-Busch has a long history of paying dividends and expects to
continue paying dividends each year. The company also has an active common
share repurchase program and anticipates continued share repurchase in the
future. However, Anheuser-Busch has no commitments or obligations related to
dividends, or for the repurchase or pledging of common shares. The company
has no off-balance-sheet obligations or guarantees and does not use special
purpose entities for any transactions.
34 ANHEUSER-BUSCH COMPANIES, INC. 2003 ANNUAL REPORT
<PAGE>
<PAGE>
The 9% debentures due 2009 and the ESOP debt guarantee that expires in
March 2004 (both of which are included in debt on the consolidated balance
sheet) permit holders to require repayment of the debt prior to its maturity
after a decline in the company's credit rating below investment grade. In
the case of the 9% debentures, the credit downgrade must be preceded by a
change in control. The total outstanding balance for this debt at December
31, 2003 is $396 million.
The 5.35% notes due 2023 permit beneficiaries of deceased note owners
to require repayment of the debt at any time prior to maturity, subject to
an annual limit of $25,000 per decedent and a cap on aggregate redemptions
of $3.6 million per year. The company redeemed $130,000 of these notes in
2003.
The company has occasionally provided short-term, small-scale loan
guarantees for beer wholesalers to assist them in obtaining long-term bank
financing. The duration of these guarantees varies. At December 31, 2003 and
2002, there were no guarantees outstanding and no guarantees were provided
during either year.
The company's fixed charge coverage ratio was 7.8X, 7.6X and 7.0X for
the years ended December 31, 2003, 2002 and 2001, respectively. See Note 12
for details of the company's future cash commitments.
Capital Expenditures
During the next five years, the company will continue capital expenditure
programs designed to take advantage of growth and productivity improvement
opportunities for its beer, packaging and entertainment operations. The
company has a formal and intensive review procedure for the authorization of
capital expenditures. The most important financial measure of acceptability
for a discretionary capital project is whether its projected discounted cash
flow return on investment exceeds the company's cost of capital.
Total capital expenditures amounted to $993 million in 2003, $835
million in 2002 and $1.0 billion in 2001. The increase in 2003 and the
decline in 2002 are both primarily attributable to the deferral of spending
in 2002. Capital expenditures over the past five years totaled $4.8 billion.
The company expects capital expenditures in 2004 of approximately $900
million to $1 billion and is projecting capital spending during the
five-year period 2004 - 2008 of approximately $4.6 billion.
Capital Expenditures/Depreciation & Amortization
(IN MILLIONS)
[graph]
Capital Expenditures Depreciation & Amortization
- ------------------------------------------------------------------------------
2003 $993.0 $877.2
2002 $834.7 $847.3
2001 $1,022.0 $834.5
2000 $1,074.5 $803.5
1999 $865.3 $777.0
- ------------------------------------------------------------------------------
Share Repurchase
The company spent $1.96 billion, $2.0 billion and $1.2 billion to repurchase
common shares in 2003, 2002 and 2001, respectively. From an economic
perspective, the company's share repurchase program represents an effective
cash flow and opportunity cost offset to stock option grants, because the
market value increase of repurchased shares directly offsets the increase in
the in-the-money value of outstanding options. Anheuser-Busch has
historically repurchased significantly more shares each year than it has
issued under stock option plans, with average net repurchases of 2% to 3% of
outstanding shares each year. Additionally, assuming the company borrows
each year to repurchase shares, the cash flow benefit the company receives
related to the tax treatment of exercised stock options has historically
exceeded the related interest cost. See Note 7 for details of common stock
activity.
Dividends
Cash dividends paid to shareholders were $685.4 million in 2003, $649.5
million in 2002 and $614.1 million in 2001. Dividends are paid in the months
of March, June, September and December of each year. In the third quarter
2003, effective with the September dividend, the Board of Directors
increased the quarterly dividend rate by 12.8%, from $.195 to $.22 per
share. This increased annual dividends per share to $.83 in 2003, a 10.7%
increase compared with $.75 per share in 2002. Dividends were $.18 per share
for the first two quarters and $.195 per share for the last two quarters of
2002, representing an annual increase vs. 2001 of 8.7%. In 2001, dividends
were $.165 per share for the first two quarters and $.18 per share for the
last two quarters.
Net Income/Dividends
(IN MILLIONS)
[graph]
Net Income Dividends
- ------------------------------------------------------------------------------
2003 $2,075.9 $685.4
2002 $1,933.8 $649.5
2001 $1,704.5 $614.1
2000 $1,551.6 $571.0
1999 $1,402.2 $544.7
- ------------------------------------------------------------------------------
ANHEUSER-BUSCH COMPANIES, INC. 2003 ANNUAL REPORT 35
<PAGE>
<PAGE>
Financing Activities
The company utilizes SEC shelf registration statements to provide
flexibility and efficiency when obtaining long-term financing. At December
31, 2003, a total of $1.1 billion of debt was available for issuance under
an existing registration.
The company's debt balance increased a total of $682.2 million in 2003,
compared to a total increase of $619.3 million in 2002. Debt issuances of
$1.39 billion and $1.17 billion in 2003 and 2002, respectively, are detailed
below.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
Amount
Year Description (millions) Interest Rate (fixed unless noted)
- ----------------------------------------------------------------------------------------
<C> <C> <C> <C>
2003 U.S. Dollar Notes $1,273.7 $397.7 at 5.05%; $299.2 at
4.95%; $198.0 at 4.5%; $198.9
at 4.625%; $179.9 at 5.35%
Commercial Paper $ 113.5 1.08% weighted average
floating
Industrial Revenue Bonds $ 0.7 6.25%
Other, net $ 4.0 Various
- ----------------------------------------------------------------------------------------
2002 U.S. Dollar Debentures $ 843.9 $297.9 at 5.95%; $546.0 at 6.5%
U.S. Dollar Notes $ 299.1 4.375%
Industrial Revenue Bonds $ 8.8 6.11% weighted average
Other, net $ 15.3 Various
- -----------------------------------------