AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 6, 1995
Registration Statement No. 33-_____
Amendment No. 1 to Registration Statement No. 33-49051
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
Registration Statement
Under the
Securities Act Of 1933
--------------------------------
ANHEUSER-BUSCH COMPANIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 43-1162835
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
ANHEUSER-BUSCH, INCORPORATED
(Exact name of co-registrant as specified in its charter)
Missouri 43-0161000
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
One Busch Place
St. Louis, Missouri 63118
(Address of principal executive offices)
Registrant's telephone number including area code: (314) 577-2000
--------------------------------
JoBeth G. Brown Copies to:
Vice President and Secretary Denis P. McCusker, Esq.
Anheuser-Busch Companies, Inc. Armstrong, Teasdale, Schlafly &
One Busch Place Davis
St. Louis, Missouri 63118 One Metropolitan Square, Suite 2600
(Name and address of agent for St. Louis, Missouri 63102
service)
Approximate date of commencement of proposed sale to the public: From time
to time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: _____
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box: __x__
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. _____ __________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. ____ __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. __x__
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<C> <C> <C> <C> <C>
Title of each Proporsed Proposed maximum Amount
class of Amount maximum aggregate of
securities to to be offering price offering registration
be registered Registered per unit <F1> price <F2><F3> fee <F3>
- ------------- ---------------- -------------- ----------------- ------------
Debt $648,000,000<F3> 100% <F1> $648,000,000 <F2> $223,449
Securities
<FN>
<F1> Estimated solely for purposes of calculating the registration fee.
<F2> Or, if any Debt Securities are issued (i) with a principal amount
denominated in a foreign currency, such principal amount as shall result
in an aggregate initial offering price the equivalent of $648,000,000 at
the time of initial offering, or (ii) at an original issue discount, such
greater principal amount as shall result in an aggregate initial offering
price of $648,000,000.
<F3> $102,000,000 principal amount of the Debt Securities was previously
registered (Registration No. 33-49051, described below) and is carried
forward hereby. The amount of filing fee associated with the Debt
Securities that was previously paid with such earlier registration
statement is $31,875.
</FN>
</TABLE>
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus contained herein will also be used in connection with Registration
Statement No. 33-49051 previously filed by the Registrant on Form S-3 and
declared effective on September 28, 1992. This Registration Statement, which is
a new registration statement, also constitutes Amendment No. 1 to Registration
Statement No. 33-49051 and such Amendment shall become effective concurrently
with the effectiveness of this Registration Statement and in accordance with
Section 8(c) of the Securities Act of 1933.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
==============================================================================
[LOGO] ANHEUSER-BUSCH COMPANIES, INC.
Debt Securities
Anheuser-Busch Companies, Inc. (the "Company") intends to issue from time
to time its debt securities (the "Debt Securities") at an aggregate initial
offering price not to exceed $750,000,000 (or, if the principal of the Debt
Securities is payable in a foreign currency, the equivalent thereof at the time
of offering), which will be offered on terms to be determined at the time of
sale. The accompanying Prospectus Supplement (the "Prospectus Supplement")
sets forth the specific terms of the Series of Debt Securities (the "Series")
in respect of which this Prospectus is being delivered, including the
designation of the Debt Securities, the aggregate principal amount offered, the
rate or rates of interest or the provisions for determining such rate or rates
and the time of payment thereof, maturity, currency of payment, offering price,
terms relating to redemption (whether mandatory or at the option of the Company
or the holder) and information as to listing on any securities exchange.
--------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH IT RELATES.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------------------
The Debt Securities will be sold directly, through agents designated by
the Company from time to time or through underwriters or dealers designated by
the Company. If any agents of the Company or any dealers or underwriters are
involved in the sale of the Series of Debt Securities in respect of which this
Prospectus is being delivered, the names of such agents, dealers or
underwriters and any applicable agent's commission, dealer's purchase price or
underwriter's discount are set forth in or may be calculated from the
Prospectus Supplement. The net proceeds to the Company from such sale will be
the purchase price of such Series of Debt Securities less such commission in
the case of an agent, the purchase price of such Series of Debt Securities in
the case of a dealer or the public offering price less such discount in the
case of an underwriter and less, in each case, other attributable issuance
expenses. See "Plan of Distribution" for possible indemnification arrangements
for the agents, dealers and underwriters.
--------------------------------
The date of this Prospectus is ___________, 1995.
TABLE OF CONTENTS
Available Information . . . . . . 2 Book Entry Securities . . . . 10
Incorporation of Plan of Distribution . . . . 11
Documents by Reference . . . . . 2 Legal Opinion . . . . . . . . 12
The Company . . . . . . . . . . . 3 Experts . . . . . . . . . . . 12
Use of Proceeds . . . . . . . . . 3
Description of Debt Securities . 4
--------------------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 and in accordance therewith files reports and other
information with the Securities and Exchange Commission (the "Commission").
Reports, proxy statements and other information filed by the Company with the
Commission can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549;
and at the following Regional Offices of the Commission: 500 West Madison
Street, Suite 1400, Chicago, Illinois, 60661; and Seven World Trade Center,
Suite 1300, New York, New York 10048; and copies of such material can be
obtained from the public reference facilities of the Commission, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates. Such
material can also be inspected and copied at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, N.Y. 10005, on which certain of the
Company's securities are listed.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission (File No. 1-7823) are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994, filed pursuant to Section 13 of the Securities
Exchange Act of 1934.
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995, filed pursuant to Section 13 of the Securities
Exchange Act of 1934.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior to the
termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF
THIS PROSPECTUS HAS BEEN DELIVERED, ON REQUEST, A COPY OF ANY OF THE DOCUMENTS
REFERRED TO ABOVE WHICH HAVE BEEN OR MAY BE INCORPORATED IN THIS DOCUMENT BY
REFERENCE, OTHER THAN EXHIBITS TO SUCH DOCUMENTS. REQUESTS FOR SUCH COPIES
SHOULD BE DIRECTED TO THE SECRETARY, ANHEUSER-BUSCH COMPANIES, INC., ONE BUSCH
PLACE, ST. LOUIS, MISSOURI 63118, TELEPHONE (314) 577-2000.
2
THE COMPANY
The Company is a holding company whose subsidiaries include the world's
largest brewing organization. Other subsidiaries of the Company conduct
various business operations in beer-related activities, food products and
family entertainment. The Company was organized in 1979 as the holding company
parent of Anheuser-Busch, Incorporated ("ABI"), a Missouri corporation whose
origins date back to 1875.
The Company's principal product is beer, produced and distributed by 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 Dry,
Michelob Golden Draft, Michelob Golden Draft Light, Michelob Classic Dark,
Busch, Busch Light, Natural Light, Natural Pilsner, King Cobra and O'Doul's (a
non-alcoholic malt beverage). The Company has recently introduced the brands
Elk Mountain Ale, Elk Mountain Red, Red Wolf, Elephant Red Malt and Busch NA (a
non-alcoholic malt beverage). The Company is the exclusive importer into the
U.S. from Denmark of Carlsberg and Carlsberg Light beers and Elephant Malt
Liquor.
The Company's products are brewed and distributed in international markets
through its wholly-owned subsidiary, Anheuser-Busch International, Inc. Since
1993, the Company has made equity investments or formed joint ventures with
brewers in Mexico, Japan, China and the United Kingdom. Through Anheuser-Busch
European Trade Limited, an indirect wholly-owned subsidiary of the Company,
ABI's beer brands are distributed in twenty-one European countries. The
Company's products are also brewed under license or contract brewing
arrangements in Canada, Ireland, Korea and Spain, and are sold under import-
distribution agreements in more than 60 countries and U.S. territories and to
the U.S. military and diplomatic corps outside the United States.
Other subsidiaries of the Company operate in the beer-related areas of
container manufacturing and recycling, malt and rice production, metalized and
paper label manufacturing and transportation services.
Campbell Taggart, Inc., a wholly-owned subsidiary of the Company, is a
holding company whose operating subsidiaries are involved primarily in the
production and distribution of bakery products in domestic and international
markets. Eagle Snacks, Inc., a wholly-owned subsidiary of the Company,
produces and distributes a line of snack food products.
Busch Entertainment Corporation ("BEC"), a wholly-owned subsidiary of the
Company, operates Busch Gardens theme parks in Tampa, Florida and in
Williamsburg, Virginia, and Sea World theme parks in Orlando, Florida, San
Antonio, Texas, Aurora, Ohio and San Diego, California. BEC also operates
water park attractions in Tampa, Florida (Adventure Island) and Williamsburg,
Virginia (Water Country, U.S.A), an educational play park for children near
Philadelphia, Pennsylvania (Sesame Place) and the Baseball City Sports Complex
near Orlando, Florida. The Company is also the parent corporation of the St.
Louis National Baseball Club, Inc. (St. Louis Cardinals) and, through another
subsidiary, owns Busch Stadium and other properties in downtown St. Louis.
The Company's principal office is at One Busch Place, St. Louis, Missouri
63118 and its telephone number is 314-577-2000.
USE OF PROCEEDS
The Company intends to add the net proceeds from the sale of the Debt
Securities to the general funds of the Company to be used for general corporate
purposes, including payment of short-term debt, payment of working capital
expenses and capital expenditures. Prior to such application, such net
proceeds may be invested in short or intermediate term securities. Except as
may be indicated in a Prospectus Supplement delivered together with this
Prospectus, no specific determination as to the use of the proceeds of the
Securities in respect of which this Prospectus is being delivered has been
made.
3
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued either under an indenture to be
entered into between the Company and Chemical Bank, as trustee, dated as of
July 15, 1995 or under a separate, substantially identical indenture to be
entered into between the Company and a new trustee. For each issue of Debt
Securities, the applicable indenture (the "Indenture") and the trustee
thereunder (the "Trustee") will be specified in the Prospectus Supplement
relating to such issue of Debt Securities or in an attachment thereto. Each
issue of Debt Securities will constitute a Series or Issue of Securities (as
described below) under, and will be governed by the provisions of, the
particular Indenture under which it is issued. The provisions of each of the
Indentures are substantially identical and the following description (other
than certain information pertaining only to Chemical Bank, as described below)
is applicable to each Indenture.
A copy of each Indenture is filed as an exhibit to the Registration
Statement which has been filed with the Commission relating to the Debt
Securities. The following is a summary of certain provisions of the Indenture
and does not purport to be complete. Reference is made to the Indenture for a
complete statement of such provisions. Certain capitalized terms used below
are defined in the Indenture and have the meanings given to them in the
Indenture. Section references are to the Indenture.
GENERAL
The Indenture provides for the issuance by the Company from time to time
of its Securities in one or more Series which may consist of one or more
Issues. An Issue of Securities will consist of Securities having the same
interest rate, maturity and issue date. The Indenture does not limit the
amount of Securities which may be issued thereunder, and provides that the
specific terms of any Series of Securities shall be set forth in, or determined
pursuant to, an Authorizing Resolution of the Board of Directors of the Company
or in a supplemental indenture, if any, relating to such Series (Section 301).
The specific terms of the Series of Securities in respect of which this
Prospectus is being delivered are set forth in the accompanying Prospectus
Supplement relating thereto, including the following:
1. The title of the Series and whether it will consist of more than
one Issue.
2. The aggregate principal amount of the Securities of the Series.
3. The date or dates on which principal and premium, if any, on
Securities of the Series is payable, and, if applicable, the terms on
which such maturity may be extended.
4. The rate or rates of interest (if any) on the Securities of such
Series (whether floating or fixed), the provisions, if any, for
determining such interest rate or rates and adjustments thereto, the
Interest Payment Dates and the Regular Record Dates with respect thereto.
5. The currency(ies) in which principal, premium, if any, and
interest are payable by the Company, if other than United States dollars.
6. Provisions relating to redemption, at the option of the Company,
pursuant to a Sinking Fund or otherwise, or at the option of a Holder, and
the respective Redemption Dates and redemption prices and the terms and
conditions for such redemption.
7. Additional covenants or Events of Default, if any, with respect
to the Securities of such Series in addition to the covenants and Events
of Default specified in the Indenture.
8. If less than 100% of the principal amount of the Securities of
such Series is payable on acceleration or provable in bankruptcy (which
may be the case for Original Issue Discount Securities), a schedule of the
amounts which would be so payable or provable from time to time.
9. The form of the Securities of such Series, including whether the
Securities of the Series shall be issued in whole or in part in the form
of one or more global Securities and, in such case, the Depositary or
Depositaries for such global Security or Securities.
4
If not set forth in the accompanying Prospectus Supplement, the specific
terms of the Series or Issue of Debt Securities in respect of which this
Prospectus is being delivered are set forth in an attachment to the
accompanying Prospectus Supplement.
The Debt Securities will be direct and unconditional obligations of the
Company, which will be unsecured and will rank pari passu with all other
unsecured senior indebtedness of the Company outstanding at the time.
Except as otherwise specified in the Authorizing Resolution relating to
the Securities in respect of which this Prospectus is being delivered,
principal and interest on the Securities are to be payable, and the Securities
are to be transferable, at the office of the Trustee (in the case of Chemical
Bank, at its Corporate Trust Office, 450 West 33rd Street, New York, New York,
or, in the case of any other Trustee, at the office and address specified in
the related Prospectus Supplement or in an attachment thereto), but payment of
interest, other than interest due on a Maturity Date, may be made at the option
of the Company by check mailed to the address of the person entitled thereto as
shown on the Security Register (Sections 202, 301, 305 and 1002). The
Securities are to be registered without coupons in the denomination of $100,000
or any integral multiple thereof, or in such other currencies or denominations
as may be specified in, or pursuant to, the Authorizing Resolution relating to
a Series of Securities (Section 302). No service charge will be made for any
transfer or exchange of Securities, except any tax or other governmental
charges that may be imposed in connection therewith (Section 305).
INDEBTEDNESS; DIVIDENDS; SECURITY PURCHASES
The Indenture does not limit the amount of unsecured indebtedness of the
Company or limit the payment of dividends or the acquisition of the Securities
or any other debt or equity security of the Company (but Funded Debt of
Restricted Subsidiaries is limited as described below under "Limitation on
Funded Debt of Restricted Subsidiaries").
DEFINITIONS
For purposes of the Indenture covenants described below:
"Funded Debt" means, generally, indebtedness for money borrowed maturing
more than 12 months from the date of determination or extendable beyond 12
months from such date at the option of the borrower, and direct guarantees of
such indebtedness of other Persons, subject to certain exceptions, including
exceptions for capitalized lease obligations and indirect guarantees and
contingent obligations in respect of indebtedness of other Persons, which
exception includes agreements to purchase or repurchase obligations of other
Persons, agreements to provide funds to or invest in other Persons, agreements
to pay for property, products or services of other Persons and any demand
charge, throughput, take-or-pay, keep-well, make-whole or maintenance of
working capital or earnings or similar agreements.
"Net Tangible Assets" means the total assets of the Company and its
Restricted Subsidiaries (including, with respect to the Company, its net
investment in Unrestricted Subsidiaries) after deducting therefrom (a) all
current liabilities (excluding any thereof constituting Funded Debt by reason
of being renewable or extendable) and (b) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense, organization and
developmental expenses and other like segregated intangibles, all as computed
by the Company in accordance with generally accepted accounting principles as
of a date within 90 days of the date as of which the determination is being
made; provided, that any items constituting deferred income taxes, deferred
investment tax credit or other similar items shall not be taken into account as
a liability or as a deduction from or adjustment to total assets.
"Principal Plant" means any brewery, or any manufacturing, processing or
packaging plant, now owned or hereafter acquired by the Company or any
Subsidiary, but shall not include any (a) brewery or manufacturing, processing
or packaging plant which the Company shall by Board Resolution have determined
is not of material importance to the total business conducted by the Company
and its Subsidiaries or (b) any plant which the Company shall by Board
Resolution have determined is used primarily for transportation, marketing or
warehousing. Any such determination will be effective as of the date specified
in the applicable Board Resolution.
5
"Restricted Subsidiary" means (i) any Subsidiary which owns or operates a
Principal Plant, except any Subsidiary incorporated, or the principal place of
business of which is located, outside the United States and (ii) any other
subsidiary which the Company, by Board Resolution, shall elect to be treated as
a Restricted Subsidiary, until such time as the Company may, by further Board
Resolution, elect that such Subsidiary shall no longer be a Restricted
Subsidiary, successive such elections being permitted without restriction. Any
such election will be effective as of the date specified in the applicable
Board Resolution.
"Subsidiary" means any corporation of which more than 50% of the issued
and outstanding stock entitled to vote for the election of directors (otherwise
than by reason of default in dividends) is at the time owned directly or
indirectly by the Company or a Subsidiary or Subsidiaries or by the Company and
a Subsidiary or Subsidiaries (Section 101).
CREATION OF SECURED INDEBTEDNESS
The Indenture provides that the Company will not, nor will it permit any
Restricted Subsidiary to, create, assume, guarantee or suffer to exist any
indebtedness for borrowed money secured by pledge of, or mortgage or lien on,
any of its Principal Plants or on any capital stock of any Restricted
Subsidiary (other than (a) purchase money liens, (b) liens existing at the time
of acquisition of property (including through merger or consolidation) or
securing indebtedness the proceeds of which are used to pay or reimburse the
Company or a Restricted Subsidiary for the cost of such property (provided such
indebtedness is incurred within 180 days after such acquisition), (c) liens on
property of a Restricted Subsidiary existing at the time it becomes a
Restricted Subsidiary, (d) liens to secure the cost of development or
construction of property, or improvements thereon, and which are released or
satisfied within 120 days after completion of the development or construction,
(e) liens in connection with the acquisition or construction of Principal
Plants or additions thereto financed by tax-exempt securities, (f) liens
securing indebtedness owing to the Company or a Restricted Subsidiary by a
Restricted Subsidiary, (g) liens existing at the date of the Indenture,
(h) liens required in connection with state or local governmental programs
which provide financial or tax benefits, provided the obligations secured are
in lieu of or reduce an obligation that would have been secured by a lien
permitted under the Indenture, (i) extensions, renewals or replacements of the
liens referred to in clauses (a) through (h), (j) as permitted under the
provisions described in the following two paragraphs herein and (k) in
connection with sale-leaseback transactions permitted under the Indenture),
without effectively providing that the Securities (together with, if the
Company shall so determine, any other indebtedness of the Company then existing
or thereafter created ranking equally with the Securities and any other
indebtedness of such Restricted Subsidiary then existing or thereafter created)
shall be secured by the security for such secured indebtedness equally and
ratably therewith (Section 1006(a)).
Notwithstanding the provisions referred to in the immediately preceding
paragraph, the Company or any Restricted Subsidiary may, without ratably
securing the Securities, create, assume, guarantee or suffer to exist any
indebtedness which would otherwise be subject to such restrictions, and renew,
extend or replace such indebtedness, provided that the aggregate amount of such
indebtedness, when added to the fair market value of property transferred in
certain sale and leaseback transactions permitted by Section 1007(c) as
described below under "Sale-Leaseback Financings" and the aggregate amount of
certain Funded Debt of Restricted Subsidiaries permitted by Section 1008(b) as
described below under "Limitation on Funded Debt of Restricted Subsidiaries"
(computed without duplication of amounts), does not at the time exceed 10% of
Net Tangible Assets (Section 1006(d)).
If the Company or any Restricted Subsidiary shall merge or consolidate
with, or purchase all or substantially all of the assets of, another
corporation, or the Company shall sell all or substantially all of its assets
to another corporation, and if such other corporation has outstanding
obligations secured by a mortgage or other lien which, by reason of an
after-acquired property clause or similar provision, would extend to any
Principal Plant owned by the Company or such Restricted Subsidiary immediately
prior thereto, the Company or such Restricted Subsidiary, as the case may be,
will in such event be deemed to have created a mortgage or lien, within the
prohibition of the covenant referred to above, unless (i) such merger or
consolidation involving a Restricted Subsidiary constitutes a disposition by
the Company of its interest in the Restricted Subsidiary or (ii) either (a) at
or prior to the effective date of
6
such merger, consolidation, sale or purchase such lien shall be released of
record or satisfied to the extent it would extend to such Principal Plant or
(b) prior thereto, the Company or such Restricted Subsidiary shall have
created, as security for the Securities (and, if the Company shall so
determine, as security for any other indebtedness of the Company then existing
or thereafter created ranking equally with the Securities and any other
indebtedness of such Restricted Subsidiary then existing or thereafter
created), a valid lien which will rank prior to the lien of such mortgage or
other lien of such other corporation on such Principal Plant of the Company or
such Restricted Subsidiary, as the case may be (Section 1006(b)).
In each instance referred to in the preceding paragraphs where the Company
is obligated to provide security for the Securities (except, for certain issues
of indebtedness, in the case of transactions relating to stock of a Restricted
Subsidiary), the Company would be required to provide comparable security for
other outstanding indebtedness under the indentures and other agreements
relating thereto.
LIMITATION ON FUNDED DEBT OF RESTRICTED SUBSIDIARIES
The Company will not permit any Restricted Subsidiary to create, assume or
permit to exist any Funded Debt other than (i) Funded Debt secured by a
mortgage, pledge or lien which is permitted to such Restricted Subsidiary under
the provisions of Section 1006 described above under "Creation of Secured
Indebtedness", (ii) Funded Debt owed to the Company or any Restricted
Subsidiary, (iii) Funded Debt of a corporation existing at the time it becomes
a Restricted Subsidiary, (iv) Funded Debt created in connection with, or with a
view to, compliance by such Restricted Subsidiary with the requirements of any
program, law, statute or regulation of any federal, state or local governmental
authority and applicable to such Restricted Subsidiary and providing financial
or tax benefits to such Restricted Subsidiary which are not available directly
to the Company, or not available on as favorable terms, (v) guarantees existing
at the date of the Indenture and (vi) certain guarantees of Funded Debt with
respect to which the Company is liable (Section 1008(a)).
Notwithstanding the provisions referred to in the immediately preceding
paragraph, any Restricted Subsidiary may create, assume or permit to exist
Funded Debt in addition to that permitted by such provisions, and renew, extend
or replace such Funded Debt, provided that at the time of such creation,
assumption, renewal, extension or replacement, and after giving effect thereto,
the aggregate amount of such Funded Debt which would otherwise be subject to
such restriction, together with the aggregate amount of indebtedness for
borrowed money permitted by Section 1006(d) as described above under "Creation
of Secured Indebtedness" and the aggregate amount of the fair market value of
property transferred in sale and leaseback transactions permitted by Section
1007(c) as described below under "Sale-Leaseback Financings" (computed without
duplication of amounts) does not at the time exceed 10% of Net Tangible Assets
(Section 1008(b)).
SALE-LEASEBACK FINANCINGS
The Indenture provides that neither the Company nor any Restricted
Subsidiary will enter into any sale and leaseback transaction involving any
Principal Plant, other than a sale by a Restricted Subsidiary to the Company or
a Restricted Subsidiary or a transaction involving a lease for a temporary
period, not to exceed three years, by the end of which it is intended to
discontinue use of the property, unless (i) the net proceeds of such sale
(including any purchase money mortgages received in connection with such sale)
are at least equal to the fair market value (as determined by Board Resolution)
of such property and (ii) within 120 days of the transfer of title to such
property the Company purchases and retires a principal amount of Securities, or
repays other Funded Debt of the Company or any Restricted Subsidiary, or makes
expenditures for the expansion, construction or acquisition of a Principal
Plant, or effects some combination of such repurchases, repayments and plant
expenditures, equal to the net proceeds received by the Company or such
Restricted Subsidiary upon such sale (Section 1007).
Notwithstanding the restriction referred to in the immediately preceding
paragraph, the Company or any Restricted Subsidiary may transfer property in
sale and leaseback transactions which would otherwise be subject to such
restriction if the aggregate amount of the fair market value of the property so
transferred, when added to the aggregate amount of certain Funded Debt of
Restricted Subsidiaries permitted by Section 1008(d) as described above under
"Limitation on Funded Debt of Restricted Subsidiaries" and the aggregate amount
of indebtedness for borrowed money permitted by Section
7
1006(d) as described above under "Creation of Secured Indebtedness" (computed
without duplication of amounts), does not at the time exceed 10% of Net
Tangible Assets (Section 1007(c)).
MERGER
The Indenture provides that the Company may not consolidate with or merge
into any other corporation or transfer or lease its properties and assets
substantially as an entirety unless certain conditions are met, including the
assumption of the Securities by any successor corporation to the Company
(Sections 801 and 1006).
MODIFICATION OF THE INDENTURE
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with consent of the Holders of a majority in principal amount
of the Outstanding Securities affected thereby (voting as a single class),
provided that no supplemental indenture may reduce the principal amount of or
interest or premium payable on any Security, change the maturity date or dates
of the principal, the interest payment dates or other terms of payment, or
reduce the percentage of Holders necessary to modify or alter the Indenture,
without the consent of each Holder of Outstanding Debt Securities affected
thereby (Section 902). The Company and the Trustee may modify and amend the
Indenture without the consent of any Holders for certain specified purposes,
including to make any change which, in the opinion of counsel to the Company,
does not materially adversely affect the interests of the Holders of the Series
of Securities affected thereby (Section 901).
EVENTS OF DEFAULT, NOTICE AND WAIVER
The Indenture defines an Event of Default, with respect to any Issue of
Securities, as: (a) default in the payment of any interest on any Security of
that Issue, continued for 30 days, (b) default in the payment of principal, or
premium, if any, on any Security of that Issue when due, and, in the case of a
principal payment becoming due by reason of an optional redemption by the
Company, continuance of such default for 30 days, (c) default in the deposit of
a required Sinking Fund installment (if any) in respect of such Issue and
continuance of such default for 30 days, (d) default in the performance of any
other covenant of the Company continued for 90 days after written notice by the
Trustee or holders of at least 25% in principal amount of the Outstanding
Securities of all Issues affected thereby, and (e) certain events of
bankruptcy, insolvency or reorganization (Section 501). Additional Events of
Default, if any, applicable to the Series or Issue of Securities in respect of
which this Prospectus is being delivered are specified in the accompanying
Prospectus Supplement.
If there shall occur and be continuing an Event of Default with respect to
the payment of principal or premium, if any, or interest or any Sinking Fund
installment on the Securities of any Issue, the Trustee, or the holders of at
least 25% in principal amount of the Securities of such Issue then Outstanding,
may declare the principal amount of all the Securities of such Issue
immediately due and payable. If there shall occur and be continuing (i) an
Event of Default with respect to any covenant of the Company applicable to the
Securities of any or all Issues or (ii) any other Event of Default referred to
above, other than payment defaults, the Trustee or the Holders of at least 25%
in principal amount of all Securities then Outstanding in respect of which the
Event of Default has occurred (voting as a single class) may declare the
principal amount of all of the Securities so affected immediately due and
payable. The Holders of a majority in principal amount of the Securities then
Outstanding so affected (voting as a single class) (or, in the case of a
payment default as to any Issue, the Holders of a majority in principal amount
of the Securities of such Issue) may rescind such declaration and the effects
thereof if the default is cured. No Holder of Securities may enforce the
Indenture except in the case of a refusal or neglect of the Trustee to act
after notice of default and after request by the Holders of a majority in
principal amount of the outstanding Securities of any Issue or Series as to
which a default has occurred, and the offer to the Trustee of reasonable
indemnity, but this provision does not prevent any holder of any Security from
enforcing payment of principal or premium, if any, or interest on such holder's
Security (Sections 502, 507 and 508).
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default with respect to any Securities, give to the Holders of
such Securities notice of all uncured defaults (as defined, not including any
grace periods) known to it; but, except in the case of a payment default on any
of the
8
Securities, the Trustee will be protected in withholding such notice if it in
good faith determines that the withholding of such notice is in the interest of
such Holders (Section 602).
The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during default to act with the required standard of care,
to be indemnified by the Holders of Securities issued thereunder before
proceeding to exercise any right or power under the Indenture at the request of
such Holders (Section 603(e)). The Indenture provides that the Holders of a
majority in principal amount of the Outstanding Securities of any Series
(voting as a single class) may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred upon the Trustee in respect of the Securities of such Series
(Section 512).
The Holders of a majority in principal amount of the Outstanding
Securities of all Series affected thereby (voting as a single class) may, on
behalf of the Holders of all such Securities, waive certain past defaults
except a default in payment of the principal of, or premium, if any, or
interest on any Security (Section 513). The Holders of a majority in principal
amount of Outstanding Securities of all Series entitled to the benefits thereof
(voting as a single class) may waive compliance with certain covenants under
the Indenture (Section 1010).
The Company is required to furnish to the Trustee, annually, a statement
as to the fulfillment by the Company of its obligations under the Indenture
(Section 1004).
SATISFACTION AND DISCHARGE
The Indenture provides that, at the option of the Company, the Indenture
will be satisfied and discharged and cease to be of further effect (except for
certain rights relating to transfers or exchanges of Securities) if all of the
Outstanding Securities have been delivered to the Trustee for cancellation,
except for Securities in respect of which the Company has made irrevocable
provision for payment within one year in accordance with the requirements of
the Indenture (Article Four).
At the election of the Company, (a) the obligations of the Company under
the Indenture with respect to one or more Series of Securities (except for
certain obligations relating to transfers or exchanges of Securities) or
(b) the obligations of the Company under certain covenants contained in the
Indenture (including, among others, those described above under "Creation of
Secured Indebtedness," "Limitation on Funded Debt of Restricted Subsidiaries"
and "Sale Leaseback Financings") with respect to one or more Series of
Securities, may be satisfied and discharged upon the satisfaction of certain
conditions, including the deposit with the Trustee of money or U.S. government
obligations sufficient for payment of such Series of Securities (Article
Thirteen).
REGARDING THE TRUSTEE
For each Series or Issue of Debt Securities, the Trustee under the
applicable Indenture will either be Chemical Bank or a new Trustee selected by
the Company, as specified in the related Prospectus Supplement or an attachment
thereto.
Chemical Bank is the Trustee under one of the Indentures. Chemical Bank
also acts as trustee (or successor trustee) under the following Indentures with
the Company: (a) an Indenture dated as of September 1, 1992 under which there
have been issued $200,000,000 principal amount of 6.90% Notes Due October 1,
2002, $200,000,000 principal amount of 7 3/8% Debentures Due July 1, 2023,
$200,000,000 principal amount of 6.75% Notes Due June 1, 2005 and $48,000,000
principal amount of Medium-Term Notes; (b) an Indenture dated as of September
1, 1989 under which there has been issued $241,729,000 principal amount of 8%
Series A Senior Convertible Debentures Due 1996; (c) an Indenture dated as of
August 1, 1987 under which there have been issued $200,000,000 principal amount
of 10% Sinking Fund Debentures Due July 1, 2018, $350,000,000 principal amount
of 9% Debentures Due December 1, 2009, $250,000,000 principal amount of 8 %
Notes Due December 1, 1999, $100,000,000 principal amount of 8 % Notes Due July
15, 1995, $225,000,000 principal amount of Medium-Term Notes and $60,000,000
principal amount of Medium-Term Notes, Second Series; and (d) an Indenture
dated as of October 1, 1982 under which there have been issued $150,000,000
principal amount of 8-5/8% Sinking Fund Debentures Due December 1, 2016 and
$150,000,000 principal amount of 8 % Sinking Fund Debentures Due March 1, 2017.
Chemical Bank also is a party to a credit
9
agreement with the Company, under which Chemical Bank has committed to lend to
the Company a maximum of $125 million.
Information regarding any other Trustee under the applicable Indenture for
a Series or Issue of Debt Securities will be furnished with the Prospectus
Supplement relating to such Series or Issue of Debt Securities.
BOOK-ENTRY SECURITIES
If so indicated on the related Prospectus Supplement, the Debt Securities
will be issued in book-entry form (Book Entry Securities), which will be
represented by a single global Security, and which will be deposited with, or
on behalf of, The Depository Trust Company, as depositary (the Depositary), and
will be registered in the name of the Depositary or a nominee of the
Depositary.
Ownership of beneficial interests in a global Security will be limited to
participants and to persons that may hold interests through institutions that
have accounts with the Depositary (participants). Ownership of beneficial
interests by participants in a global Security will be shown on, and the
transfer of that ownership interest will be effected only through, records
maintained by the Depositary for such global Security. Ownership of beneficial
interests in such global Security by persons that hold through participants
will be shown on, and the transfer of that ownership interest within such
participant will be effected only through, records maintained by such
participant.
Payment of principal of and any premium and interest on Book Entry
Securities represented by such global Security will be made to the Depositary
or its nominee, as the case may be, as the sole registered owner and the sole
Holder of the Book Entry Securities represented thereby for all purposes under
the Indenture. The Company, the Trustee and their agents will not have any
responsibility or liability for any aspect of the Depositary's records relating
to or payments made on account of beneficial ownership interests in a global
Security representing any Book Entry Securities or for maintaining, supervising
or reviewing any of the Depositary's records relating to such beneficial
ownership interests.
The Company has been advised by the Depositary that upon receipt of any
payment of principal of or any premium or interest on such global Security, the
Depositary will immediately credit, on its book-entry registration and transfer
system, the accounts of participants with payments in amounts proportionate to
their respective beneficial interests in the principal amount of such global
Security as shown on the records of the Depositary. Payments by participants
to owners of beneficial interests in the global Security held through such
participants will be governed by standing instructions and customary practices,
as is now the case with securities held for customer accounts registered in
"street name", and will be the sole responsibility of such participants.
The global Security may not be transferred except as a whole by a nominee
of the Depositary to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor of the Depositary or a
nominee of such successor.
The global Security representing Book Entry Securities is exchangeable for
definitive Securities in registered form, bearing interest (if any) at the same
rate or pursuant to the same formula, having the same date of issuance,
redemption provisions, stated maturity and other terms and of differing
denominations aggregating a like amount, only if (x) the Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for such
global Security or if at any time the Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended (the Exchange
Act), and the Company does not appoint a successor Depository within 90 days or
(y) the Company approves such exchange. In that event, the global Security
will be exchangeable for definitive Securities in registered form, bearing
interest at the same rate, having the same date of issuance, redemption
provisions, stated maturity and other terms and of differing denominations
aggregating a like principal amount. Such definitive Securities will be
registered in the names of the owners of the beneficial interests in the global
Securities as provided by the Depositary's participants.
10
Except as provided above, owners of beneficial interests in such global
Security will not be entitled to receive physical delivery of Securities in
definitive form and will not be considered the Holders thereof for any purpose
under the Indenture, and the global Security representing Book Entry Securities
will not be exchangeable. Accordingly, each person owning a beneficial
interest in such global Security must rely on the procedures of the Depositary
and, if such person is not a participant, on the procedures of the participant
through which such person owns its interest, to exercise any rights of a Holder
under the Indenture. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to transfer
beneficial interests in a global Security.
The Depositary may grant proxies and otherwise authorize participants to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action which a Holder is entitled to give or take under the
Indenture. The Company understands that under existing industry practices, in
the event that the Company requests any action of Holders or that an owner of a
beneficial interest in such a global Security desires to give or take any
action which a Holder is entitled to give or take under the Indenture, the
Depositary would authorize the participants holding the relevant beneficial
interests to give or take such action, and such participants would authorize
beneficial owners owning through such participants to give or take such action
or would otherwise act upon the instructions of beneficial owners owning
through them.
The Depositary has advised the Company that the Depositary is a limited-
purpose trust company organized under the laws of the State of New York, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered under the Exchange Act. The Depositary was created to hold the
securities of its participants and to facilitate the clearance and settlement
of securities transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. The
Depositary's participants include securities brokers and dealers (which may
include agents or underwriters referred to in the related Prospectus
Supplement), banks, trust companies, clearing corporations, and certain other
organizations some of whom (and/or their representatives) own the Depositary.
Access to the Depositary's book-entry system is also available to others, such
as banks, brokers, dealers and trust companies that clear through or maintain a
custodian relationship with a participant, either directly or indirectly.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities in any of three ways:
(i) through underwriters or dealers; (ii) directly to a limited number of
institutional purchasers or to a single purchaser; or (iii) through agents.
Any such underwriter, dealer or agent may be deemed to be an underwriter within
the meaning of the Securities Act of 1933. The terms of the offering of the
Series of Debt Securities with respect to which this Prospectus is being
delivered are set forth in the Prospectus Supplement which accompanies this
Prospectus, including the name or names of any underwriters, the purchase price
of such Series and the proceeds to the Company from such sale, any underwriting
discounts and other items constituting underwriters' compensation, any initial
public offering price and any discounts or concessions which may be allowed or
reallowed or paid to dealers and any securities exchanges on which the Series
may be listed.
If underwriters are used in the sale, the Debt Securities will be acquired
by the underwriters for their own account and may be resold from time to time
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale. The
Debt Securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by such managing
underwriters or other firms. Unless otherwise set forth in the Prospectus
Supplement, the obligations of the underwriters to purchase the Debt Securities
described in the accompanying Prospectus Supplement will be subject to certain
conditions precedent and the underwriters will be obligated to purchase all
such Debt Securities if any are purchased. Any initial
11
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agents involved in the offer
or sale of the Debt Securities in respect of which this Prospectus is being
delivered are named, and any commissions payable by the Company to such agents
are set forth, in the accompanying Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase the Issue or Series of Debt Securities to which this
Prospectus and the Prospectus Supplement relates from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. Such contracts will be subject only to those conditions set forth
in the Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Agents and underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act of 1933. Agents
and underwriters may be customers of, engage in transactions with, or perform
services for the Company in the ordinary course of business.
LEGAL OPINION
Certain legal matters relating to the Debt Securities are being passed
upon for the Company by its counsel, Armstrong, Teasdale, Schlafly & Davis, One
Metropolitan Square, St. Louis, Missouri 63102.
EXPERTS
The annual consolidated financial statements of the Company incorporated
in this Prospectus by reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1994 have been so incorporated in reliance on the
report of Price Waterhouse, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth estimated expenses in connection with the
issuance and distribution of the securities being registered, assuming one
issuance of securities:
Registration Fee . . . . . . . . . . $ 223,449
Printing and Engraving . . . . . . . $ 5,000 *
Trustee's Charges . . . . . . . . . $ 10,000 *
Accounting Fees . . . . . . . . . . $ 15,000 *
Rating Agency Fees . . . . . . . . . $ 85,000 *
Blue Sky Fees and Expense . . . . . $ 10,000
Legal Fees . . . . . . . . . . . . . $ 35,000 *
Miscellaneous . . . . . . . . . . . $ 56,551 *
-----------
Total . . . . . . . . . . . . $ 440,000 *
===========
----------------
* Estimated
Item 15. Indemnification of Directors and Officers.
The Delaware General Corporation Law permits the indemnification by a
Delaware corporation of its directors, officers, employees and other agents
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than derivative
actions which are by or in the right of the corporation) if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was illegal. A
similar standard of care is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including attorneys'
fees) incurred in connection with defense or settlement of such an action and
requires court approval before there can be any indemnification where the
person seeking indemnification has been found liable to the corporation.
The Registrant's Restated Certificate of Incorporation provides that each
person who was or is made a party to, or is involved in, any action, suit or
proceeding by reason of the fact that he or she is or was a director or officer
of the Registrant (or was serving at the request of the Registrant as a
director, officer, employee or agent for another entity) while serving in such
capacity will be indemnified and held harmless by the Registrant to the full
extent authorized or permitted by Delaware law. The Restated Certificate also
provides that the Registrant may purchase and maintain insurance and may also
create a trust fund, grant a security interest and/or use other means
(including establishing letters of credit, surety bonds and other similar
arrangements) and may enter into contracts providing for indemnification, to
ensure full payment of indemnifiable amounts.
The Registrant has entered into indemnification agreements with its
directors and executive officers.
Item 16. Exhibits.
1.1 - Form of Underwriting Agreement.
1.2 - Form of Distribution Agreement.
4.1 - Form of Indenture to be entered into between the Registrant and
Chemical Bank, as Trustee.
4.2 - Form of Indenture to be entered into between the Registrant and
a Trustee to be selected.
II-1
5. - Opinion and consent of Armstrong, Teasdale, Schlafly & Davis,
counsel to the Registrant.
12. - Statements re computation of ratios of earnings to fixed charges
(incorporated by reference to Exhibit 12 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1994 and
Exhibit 12 to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1995).
23. - Consent of Price Waterhouse.
24.1 - Powers of Attorney executed by certain of the officers and
directors of the Registrant.
24.2 - Powers of Attorney executed by certain of the officers and
directors of Anheuser-Busch, Incorporated.
25 - Form T-1, Statement of Eligibility under the Trust Indenture Act
of 1939, of Chemical Bank, as Trustee, with respect to the
Indenture to be entered into between the Registrant and Chemical
Bank.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment to
this registration statement (i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the
prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement;
notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement. and (iii) to include any material
information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement; provided, however, that the
undertakings set forth in subparagraphs (i) and (ii) above do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Securities and Exchange Commission by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) To file an application for the purpose of determining the
eligibility of the trustee (under any Indenture entered into with a
trustee to be selected) to act under subsection (a) of section 310 of the
Trust Indenture Act (the "TIA") in accordance with the rules and
regulations prescribed by the Commission under section 305(b)(2) of the
TIA.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of St. Louis, State of Missouri, on the 5th day of
July, 1995.
ANHEUSER-BUSCH COMPANIES, INC.
By: JoBeth G. Brown
-------------------------------------------------
(JoBeth G. Brown, Vice President and Secretary)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
Chairman of the
Board and
President and
Director
August A. Busch III* (Principal
-------------------------- Executive July 5, 1995
August A. Busch III Officer)
Executive Vice
President - Chief
Financial and
Administrative
Officer
Jerry E. Ritter* (Principal
-------------------------- Financial July 5, 1995
(Jerry E. Ritter) Officer)
Vice President and
Controller
Gerald C. Thayer* (Principal July 5, 1995
-------------------------- Accounting
(Gerald C. Thayer) Officer)
-------------------------- Director July 5, 1995
(Pablo Aramburuzabala O.)
-------------------------- Director July 5, 1995
(Andrew B. Craig III)
Bernard A. Edison*
-------------------------- Director July 5, 1995
(Bernard A. Edison)
Peter M. Flanigan*
-------------------------- Director July 5, 1995
(Peter M. Flanigan)
II-3
John E. Jacob*
-------------------------- Director July 5, 1995
(John E. Jacob)
Charles F. Knight*
-------------------------- Director July 5, 1995
(Charles F. Knight)
Vernon R. Loucks, Jr.*
-------------------------- Director July 5, 1995
(Vernon R. Loucks, Jr.)
Vilma S. Martinez*
-------------------------- Director July 5, 1995
(Vilma S. Martinez)
Sybil C. Mobley*
-------------------------- Director July 5, 1995
(Sybil C. Mobley)
James B. Orthwein*
-------------------------- Director July 5, 1995
(James B. Orthwein)
Andrew C. Taylor*
-------------------------- Director July 5, 1995
(Andrew C. Taylor)
Douglas A. Warner III*
-------------------------- Director July 5, 1995
(Douglas A. Warner III)
William H. Webster*
-------------------------- Director July 5, 1995
(William H. Webster)
Edward E. Whitacre, Jr.*
-------------------------- Director July 5, 1995
(Edward E. Whitacre, Jr.)
* By: JoBeth G. Brown
------------------------------------------------------
JoBeth G. Brown, Vice President and Secretary
Attorney-in-Fact
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the co-registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of St. Louis, State of Missouri, on the 5th day of
July, 1995.
ANHEUSER-BUSCH, INCORPORATED
By: JoBeth G. Brown
-------------------------------------------------
(JoBeth G. Brown, Vice President and Secretary)
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated:
Signature Title Date
--------- ----- ----
Chairman of the
Board and Chief
Executive Officer
August A. Busch III* (Principal
-------------------------- Executive July 5, 1995
(August A. Busch III) Officer)
Patrick T. Stokes* President and
-------------------------- Director July 5, 1995
(Patrick T. Stokes)
Vice President -
Finance and
Director
Jerry E. Ritter* (Principal
-------------------------- Financial July 5, 1995
(Jerry E. Ritter) Officer)
Controller
Gerald C. Thayer* (Principal
-------------------------- Accounting July 5, 1995
(Gerald C. Thayer) Officer)
W. Randolph Baker*
-------------------------- Director July 5, 1995
(W. Randolph Baker)
August A. Busch IV*
-------------------------- Director July 5, 1995
(August A. Busch IV)
Joseph L. Goltzman*
-------------------------- Director July 5, 1995
(Joseph L. Goltzman)
James F. Hoffmeister*
-------------------------- Director July 5, 1995
(James F. Hoffmeister)
II-5
James I. Hunter III*
-------------------------- Director July 5, 1995
(James I. Hunter III)
John E. Jacob*
-------------------------- Director July 5, 1995
(John E. Jacob)
Donald W. Kloth*
-------------------------- Director July 5, 1995
(Donald W. Kloth)
Gerhardt A. Kraemer*
-------------------------- Director July 5, 1995
(Gerhardt A. Kraemer)
Stephen K. Lambright*
-------------------------- Director July 5, 1995
(Stephen K. Lambright)
Aloys H. Litteken*
-------------------------- Director July 5, 1995
(Aloys H. Litteken)
Ellis W. McCracken, Jr.*
-------------------------- Director July 5, 1995
(Ellis W. McCracken, Jr.)
Anthony T. Ponturo*
-------------------------- Director July 5, 1995
(Anthony T. Ponturo)
William L. Rammes*
-------------------------- Director July 5, 1995
(William L. Rammes)
-------------------------- Director July 5, 1995
(Jesus Rangel)
Joseph P. Sellinger*
-------------------------- Director July 5, 1995
(Joseph P. Sellinger)
Wayman F. Smith III*
-------------------------- Director July 5, 1995
(Wayman F. Smith III)
* By: JoBeth G. Brown
------------------------------------------------
JoBeth G. Brown, Vice President and Secretary
Attorney-in-Fact
II-6
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
------- ----------------------
1.1 - Form of Underwriting Agreement.
1.2 - Form of Distribution Agreement.
4.1 - Form of Indenture to be entered into between the Registrant
and Chemical Bank, as Trustee.
4.2 - Form of Indenture to be entered into between the Registrant
and a Trustee to be selected.
5. - Opinion and consent of Armstrong, Teasdale, Schlafly &
Davis, counsel to the Registrant.
12. - Statements re computation of ratios of earnings to fixed
charges (incorporated by reference to Exhibit 12 to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1994 and Exhibit 12 to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1995).
23. - Consent of Price Waterhouse.
24.1 - Powers of Attorney executed by certain of the officers and
directors of the Registrant.
24.2 - Powers of Attorney executed by certain of the officers and
directors of Anheuser-Busch, Incorporated.
25 - Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939, of Chemical Bank, as Trustee, with
respect to the Indenture to be entered into between the
Registrant and Chemical Bank.
STATEMENT OF DIFFERENCES
The upper left-hand corner of the circulated Prospectus will contain a one
inch square corporate logo of Anheuser-Busch Companies, Inc. The corporate
logo consists of a silver "A" and a white eagle on a blue background.
Exhibit 1.1
UNDERWRITING AGREEMENT
[Date]
[Underwriter]
Dear Sirs:
ANHEUSER-BUSCH COMPANIES, INC. (the "Company") proposes to issue and sell
from time to time certain of its debt securities referred to below (the
"Securities") registered under the registration statement referred to below.
The Securities will be issued under an Indenture (the "Indenture"), dated as of
________________, between the Company and _________________________, as
Trustee, and will have varying designations, interest rates and times of
payment of any interest, maturities, redemption provisions and other terms,
with all such terms for any particular series of the Securities being
determined at the time of the sale. Particular series of the Securities may be
sold to you, and to other firms on whose behalf you may act, for resale in
accordance with the terms of offering determined at the time of sale. The
Securities involved in any such offering are hereinafter referred to as the
"Purchased Securities", and the firms which agree to purchase the same are
hereinafter referred to as the "Underwriters" of such Purchased Securities.
The terms and conditions herein shall constitute a separate agreement between
the Company and the respective Underwriters in regard to each offering of
Purchased Securities.
The Company has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (herein
referred to collectively as the "Act"), a registration statement on Form S-3
(No. 33-________) relating to the Securities which became effective on
______________, 1995, which includes a prospectus in respect of such
registration statement. Such registration statement, as amended or
supplemented by a Prospectus Supplement with respect to an offering of
Purchased Securities as referred to in Section 1 below and all prior amendments
and supplements thereto (other than supplements relating to Securities that are
not Purchased Securities) including the Prospectus dated _______________, 1995,
and including all documents filed as a part thereof or incorporated therein,
are hereinafter together referred to as the "Registration Statement," and such
prospectus, as so amended or supplemented, including all documents incorporated
by reference therein, as the "Prospectus."
This Agreement shall not limit or affect the right of the Company to offer
or sell any of the Securities through any other underwriters or agents or
through any other arrangements specified by the Company from time to time, and
this Agreement shall apply only to Securities in respect of which a Terms
Agreement shall have been executed as referred to herein.
The Company and the Underwriters agree as follows:
1. Purchase and Offering.
(a) The obligations of the Underwriters to purchase the Purchased
Securities will be evidenced by an exchange of telegraphic or other written
communications (a "Terms Agreement") at each time the Company determines to
sell Purchased Securities. Each Terms Agreement shall specify the firms which
will be Underwriters (who shall become bound by the terms hereof when the Terms
Agreement has been entered into), the principal amount to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters and the terms of
the Purchased Securities not already specified in the Indenture, including, but
not limited to, interest rates, maturities, redemption provisions and sinking
fund requirements. Each Terms Agreement shall also specify the date of
delivery and payment for the Purchased Securities other than any Contract
Securities (as defined below) and any details of the terms of offering which
should be reflected in the Prospectus Supplement relating to the offering of
the Purchased Securities. Such Prospectus Supplement shall set forth the terms
contained in the Terms Agreement and such other information that you and the
Company agree at the time the Terms Agreement is entered into should be
included in the Prospectus Supplement. Insofar as any provision of this
Agreement is inconsistent with any Terms Agreement, the Terms Agreement shall
be deemed to control. Purchased Securities to be purchased by Underwriters are
herein referred to as "Underwriters' Securities," and any Purchased Securities
to be purchased pursuant to Delayed Delivery Contracts (as defined below) as
hereinafter provided are herein referred to as "Contract Securities." The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be several and not joint. It is understood that the Underwriters propose to
offer the Purchased Securities for sale as set forth in such Prospectus
Supplement.
(b) Payment of the purchase price for the Underwriters' Securities shall
be made to the Company or its order by wire transfer of immediately available
funds or in other manner satisfactory to the Company against delivery of the
Underwriters' Securities to you for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M. (1) on the
date of delivery specified in the Terms Agreement (unless another time not
later than 10:00 A.M. on the third business day (2) thereafter shall be agreed
to by you and the Company or unless postponed in accordance with the provisions
of Section 6 hereof). The time and date that such payment and delivery are
actually made is herein sometimes referred to as the "time of purchase." The
Underwriters' Securities shall be delivered to you in definitive form, in
temporary or final form, and in such names and such principal amounts as, not
later than 10:00 A.M. on the business day immediately preceding the time of
purchase, you shall specify. For the purpose of expediting the checking and
packaging of the Underwriters' Securities by you, the Company agrees to make
them available to you for such purpose prior to the close of business on the
business day preceding the time of purchase.
(c) If any Terms Agreement provides for sales of Purchased Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Contract Securities pursuant to delayed delivery
contracts substantially in the form of Schedule I attached hereto (the "Delayed
Delivery Contracts") with such changes therein as the Company may approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. At the time of purchase
the Company will pay you as compensation, for the accounts of the Underwriters,
the compensation set forth in such Terms Agreement in respect of the principal
amount of Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities shall be deducted from the Purchased
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Purchased Securities to be purchased by each Underwriter
shall be reduced pro rata in proportion to the principal amount of Purchased
Securities set forth opposite each Underwriter's name in such Terms Agreement,
except to the extent that you determine that such reduction shall be otherwise
allocated and so advise the Company.
2. Certain Covenants of the Company: The Company agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Purchased Securities for offering and sale and in
determining their eligibility for investment under the laws of such states as
you may designate; provided that the Company shall not be required to qualify
as a foreign corporation or to consent to the service of process in any state
(except with respect to the offering and sale of the Purchased Securities);
(b) to make available to you and the Underwriters, as soon as available,
as many copies of the Registration Statement, each related preliminary
prospectus, the Prospectus, any documents incorporated by reference therein at
or after the date thereof, and any amendments or supplements thereto (except
that supplements relating to Securities that are not Purchased Securities will
be furnished only to you), as you may reasonably request for the purposes
contemplated by the Act;
(c) to advise you promptly (confirming such advice in writing) of any
request by the Securities and Exchange Commission (the "Commission") for
amendments to the Registration Statement or Prospectus (including documents
deemed to be incorporated by reference into the Prospectus) or for additional
information with respect thereto and, if the Commission should enter a stop
order suspending the effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting or removal of such order as soon as
possible;
(d) so long as any of the Purchased Securities shall remain outstanding,
to furnish to you and, upon request, to each of the other Underwriters such
consolidated statements of income, retained earnings and changes in financial
(1) Times mentioned herein are New York City Times.
(2) As used herein, "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
Exhibit 1.1 - Page 2
position and balance sheets of the Company as it shall furnish to holders of
the Purchased Securities and as it shall file with the Commission;
(e) to advise you promptly of the happening of any event known to the
Company within the time during which a prospectus relating to the Purchased
Securities is required to be delivered under the Act which, in the judgment of
the Company, would require the making of any change in the Prospectus then
being used or in the information incorporated by reference therein so that the
statements therein would not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading, and to
prepare and furnish to the Underwriters promptly such amendments or supplements
to such prospectus as may be necessary to reflect any such change;
(f) to make generally available to its security holders an earnings
statement of the Company (which need not be audited) which will satisfy the
provisions of Section 11(a) of the Act not later than 45 days after the end of
the 12-month period beginning at the end of any fiscal quarter of the Company
during which a Terms Agreement is entered into;
(g) to pay all expenses, fees and excise taxes (other than transfer taxes
and fees and disbursements of counsel for the Underwriters except as set forth
under Section 3 hereof or (iv) below) in connection with (i) the preparation
and filing of the Registration Statement, each related preliminary prospectus,
the Prospectus and any documents incorporated by reference therein at or after
the date thereof and any amendments or supplements thereto, and the printing
and furnishing of copies of each thereof to the Underwriters and to dealers as
required by applicable law, (ii) the issue, sale, and delivery of the Purchased
Securities, (iii) the printing of this Agreement, any agreement among
underwriters, any statements of information, the opinions and letters referred
to in subsections (a) and (b) of Section 4 hereof and the Indenture and the
furnishing of copies thereof to the Underwriters, (iv) the qualification of the
Purchased Securities for offering and sale and determination of their
eligibility for investment under state laws as aforesaid (including the legal
fees and disbursements of counsel for the Underwriters and all filing fees) and
the printing and furnishing of copies of the "Blue Sky Survey" to the
Underwriters and to dealers, (v) the rating of the Purchased Securities by
investment rating agencies and (vi) the performance of the Company's other
obligations hereunder;
(h) to furnish to you as early as practicable a copy of the latest
available unaudited interim consolidated financial statements, if any, which
have been read by the independent public accountants referred to in Section
4(c) hereof as stated in their letter to be furnished pursuant to such Section,
any such financial statements to be so furnished no later than two full
business days prior to the date of such letter;
(i) to furnish to you two signed copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto (including
all exhibits thereto and documents incorporated therein) and sufficient
unsigned copies of the foregoing (other than exhibits) for distribution of a
copy to each of the other Underwriters; and
(j) before amending or supplementing the Registration Statement or the
Prospectus, or filing with the Commission during the period referred to in
subsection (e) of this Section 2 any document pursuant to Section 13, 14 or
15(d) of the Securities Exchange Act of 1934, as amended (herein, together with
the rules and regulations of the Commission thereunder, collectively referred
to as the "Exchange Act"), to furnish to you a copy of each such proposed
amendment, supplement or document.
3. Reimbursement of Underwriters' Expenses: If the Underwriters'
Securities are not delivered for any reason other than the termination of this
agreement pursuant to Section 5 hereof or the default by one or more of the
Underwriters in its or their obligations to purchase Underwriters' Securities
pursuant to any Terms Agreement, the Company shall reimburse the Underwriters
for all of their reasonable out-of-pocket expenses, including the fees and
expenses of their counsel.
4. Conditions of Underwriters' Obligations: The several obligations of
the Underwriters to purchase and pay for any issue of Underwriters' Securities
under any Terms Agreement are subject to the following conditions:
(a) That, at the time of purchase, you shall receive the signed opinions
of Armstrong, Teasdale, Schlafly & Davis, counsel for the Company, and of the
General Counsel of the Company, or of an Associate General Counsel, in form
satisfactory to your counsel, addressed to the Underwriters and dated the time
of purchase (with conformed or reproduced copies thereof for each of the other
Underwriters), as indicated below.
(i) The opinion of Armstrong, Teasdale, Schlafly & Davis is to state
in substance that:
Exhibit 1.1 - Page 3
(A) the Company and its wholly-owned subsidiary,
Anheuser-Busch, Incorporated, a Missouri corporation ("ABI"), have
been duly incorporated and are validly existing and in good standing
under the laws of their respective jurisdictions of incorporation,
and have all power and authority necessary to own their properties
and conduct the businesses in which they are engaged;
(B) this Agreement and the Terms Agreement have been duly
authorized, executed and delivered by the Company and are valid and
binding agreements of the Company, except as rights to
indemnification provided herein may be unenforceable under applicable
laws;
(C) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and (assuming that
they have been duly authorized, executed and delivered by the
purchasers thereunder) are valid and binding agreements of the
Company;
(D) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid instrument legally binding
upon the Company in accordance with its terms; the Purchased
Securities have been duly authorized; the Underwriters' Securities
(assuming they have been signed by the appropriate officers of the
Company, the facsimile seal of the Company has been affixed thereto
or imprinted thereon and they have been duly authenticated by the
Trustee, in accordance with the Indenture, which assumptions such
counsel need not verify by an inspection of the Underwriters'
Securities) have been duly issued and constitute legal, valid and
binding obligations of the Company; the Contract Securities (assuming
that they will have been similarly signed, that the facsimile seal of
the Company will have been affixed thereto or imprinted thereon and
that they will have been duly authenticated by the Trustee, as
aforesaid), when issued and delivered against payment as provided in
the Delayed Delivery Contracts, will have been duly issued and will
constitute legal, valid and binding obligations of the Company; and
the Purchased Securities are, and the Contract Securities will be,
entitled to the benefits provided by the Indenture; provided,
however, that (a) the enforceability of the Indenture, the
Underwriters' Securities and the Contract Securities may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and (b) rights of acceleration and the
availability of equitable remedies thereunder may be limited by
equitable principles of general applicability;
(E) the Purchased Securities, the Delayed Delivery Contracts
and the Indenture conform in all material respects as to legal
matters with the statements concerning them in the Prospectus;
(F) the contracts or other documents incorporated by reference
in the Registration Statement (the "Incorporated Documents") (other
than the financial statements, related schedules and other financial
and statistical data included therein, as to which such counsel need
express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of
the Exchange Act;
(G) the Registration Statement and the Prospectus (other than
the financial statements, related schedules and other financial and
statistical data included therein, and the Trustee's Statement of
Eligibility on Form T-1, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Indenture complies in all material
respects with the Trust Indenture Act of 1939, as amended;
(H) no approval by any governmental or regulatory authority is
required in connection with the consummation of the transactions
contemplated by this Agreement other than registration of the
Purchased Securities under the Act and qualification of the Indenture
under the Trust Indenture Act of 1939, as amended, and any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Purchased Securities are being offered;
(I) the Registration Statement is effective under the Act, and
no proceedings for a stop order are pending or, to the best of such
counsel's knowledge, threatened under the Act; and
In addition, such counsel shall state that such counsel has participated
in the preparation of the Registration Statement and Prospectus and although
such counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus (except as to the matters referred to
under subheadings (E) and (G) of this subsection (a)), on the basis of the
foregoing (relying as to materiality to a large extent upon the opinions of
officers and other representatives of the Company), no facts have come to the
attention of such counsel which lead it to believe that either the Registration
Exhibit 1.1 - Page 4
Statement or the Prospectus, each as of the date of the Terms Agreement,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading (it being understood that such counsel need express no opinion
with respect to the financial statements, related schedules and other financial
and statistical data included in the Registration Statement or Prospectus).
(ii) The opinion of the General Counsel of the Company, or of an
Associate General Counsel, is to state in substance that:
(A) there are no contracts or other documents required to be
included among the Incorporated Documents or filed as exhibits to the
Incorporated Documents or the Registration Statement other than those
incorporated by reference or filed as required;
(B) to the best of such counsel's knowledge, there is no
litigation or any governmental proceeding pending or threatened
against the Company or any of its subsidiaries which would affect the
transactions contemplated by this Agreement or is required to be
disclosed in the Registration Statement or Prospectus which is not
disclosed and correctly summarized therein; and
(C) neither the Registration Statement nor the Prospectus, each
as of the date of the Terms Agreement, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading (it being understood that such counsel need express no
opinion with respect to the financial statements, related schedules
and other financial and statistical data included in the Registration
Statement or Prospectus).
(b) That, at the time of purchase, the Underwriters shall receive the
favorable opinion of its counsel, dated the time of purchase, as to the matters
referred to in subheadings (B), (C), (D), (E) and (G) of subsection (a)(i) of
this Section 4.
In addition, such counsel shall state that such counsel has participated
in conferences with officers and other representatives of the Company, counsel
for the Company, representatives of the independent accountants of the Company
and representatives of the Underwriters at which the contents of the
Registration Statement and Prospectus and related matters were discussed and,
although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus (except as to matters
referred to under subheadings (E) and (G) of subsection (a)(i) of this Section
4), on the basis of the foregoing (relying as to materiality to a large extent
upon the opinions of officers and other representatives of the Company), no
facts have come to the attention of such counsel which lead such counsel to
believe that either the Registration Statement or the Prospectus, each as of
the date of the Terms Agreement, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (it being understood
that such counsel need express no comment with respect to the financial
statements, related schedules and other financial and statistical data included
in the Registration Statement or Prospectus).
(c) That, at the time of purchase, you shall receive a signed letter from
Price Waterhouse, independent public accountants, dated the time of purchase,
substantially in the form heretofore furnished to you and in substance
satisfactory to you, addressed to the Underwriters (with conformed or
reproduced copies thereof for each of the other Underwriters) with respect to
the financial statements and certain financial information contained in or
incorporated by reference into the Registration Statement and the Prospectus.
(d) That, prior to the time of purchase, (i) no stop order with respect
to the effectiveness of the Registration Statement shall have been issued under
the Act or proceedings therefor pending or threatened; (ii) the Registration
Statement shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and (iii) the Prospectus shall not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, other than any statement contained in, or any matter omitted from,
the Registration Statement or the Prospectus in reliance upon, and in
conformity with, information furnished in writing by or on behalf of any
Underwriter through you to the Company expressly for use with reference to such
Underwriter in the Registration Statement or Prospectus.
(e) That, between the time of execution of the Terms Agreement and the
time of purchase, in your opinion no material adverse change or any development
involving a prospective material adverse change in the condition
Exhibit 1.1 - Page 5
of the Company and its subsidiaries, taken as a whole (financial or otherwise),
shall have taken place (other than as referred to in or contemplated by the
Registration Statement and Prospectus).
(f) That the Company shall perform such of its obligations under this
Agreement which are to be performed by the terms hereof at or before the time
of purchase.
(g) That the Company shall, at the time of purchase, deliver to you (with
reproduced or conformed copies thereof for each of the other Underwriters) a
signed certificate of two of its executive officers stating that, between the
time of execution of the Terms Agreement and the time of purchase, no material
adverse change or any development involving a prospective material adverse
change in the condition of the Company and its subsidiaries, taken as a whole
(financial or otherwise), shall have taken place (other than as referred to in
or contemplated by the Registration Statement and Prospectus) and also covering
the matters set forth in subsections (d) and (f) of this Section 4.
(h) That the Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
5. Termination of Terms Agreement: Any Terms Agreement may be
terminated, prior to the related time of purchase, by you or by any group of
Underwriters which has agreed to purchase in the aggregate at least 50% of the
Underwriters' Securities contemplated in such Terms Agreement if, in your
judgment or in the judgment of any such group of Underwriters, there shall have
occurred any material outbreak or escalation of hostilities or other national
or international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as to make it impracticable to market
the Securities contemplated in such Terms Agreement.
The obligations of the several Underwriters under any Terms Agreement
shall also be subject to termination in your absolute discretion if, at any
time prior to the related time of purchase, trading in securities on the New
York Stock Exchange shall have been suspended or minimum prices shall have been
established on the New York Stock Exchange, or if a banking moratorium shall
have been declared either by the United States or New York State authorities,
or if the United States shall have declared war in accordance with its
constitutional processes.
If you or any group of Underwriters elects to terminate any Terms
Agreement as provided in this Section 5, the Company and each other Underwriter
shall be notified promptly by delivery, telex, telefax or other customary
manner of communication.
If the sale to the Underwriters of the Underwriters' Securities, as
contemplated in any Terms Agreement, is not carried out by the Underwriters for
any reason permitted hereunder or if such sale is not carried out because the
Company shall be unable to comply with any of the terms hereof, the Company
shall not be under any obligation or liability under this Agreement or such
Terms Agreement (except to the extent provided in Sections 2(g), 3 and 7(c)
hereof) and the Underwriters shall be under no obligation or liability to the
Company under this Agreement or such Terms Agreement (except to the extent
provided in Section 7(e) hereof) or to one another hereunder.
6. Increase in Underwriters' Commitments: If any Underwriter shall
default in its obligation to take up and pay for the Purchased Securities to be
purchased by it under any Terms Agreement and if the principal amount of
Purchased Securities which all Underwriters so defaulting shall have so failed
to take up and pay for does not exceed 10% of the total principal amount of
Purchased Securities agreed to be purchased pursuant to such Terms Agreement,
the non-defaulting Underwriters shall take up and pay for (in addition to the
principal amount of Purchased Securities they are obligated to purchase
pursuant to such Terms Agreement) the principal amount of Purchased Securities
agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Purchased Securities shall be taken up and paid for by such
non-defaulting Underwriter or Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event
no such designation is made, such Purchased Securities shall be taken up and
paid for by all non-defaulting Underwriters pro rata in proportion to the
principal amount of Purchased Securities they have agreed to purchase under
such Terms Agreement.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Purchased Securities under any Terms Agreement unless all of the
Underwriters' Securities under any such Terms Agreement are purchased by the
Underwriters (or by substituted underwriters selected by you with the approval
of the Company or selected by the Company with your approval).
If a new underwriter or underwriters are substituted by the Underwriters
or by the Company for a defaulting Underwriter or Underwriters in accordance
with the foregoing provision, the Company or you shall have the right
Exhibit 1.1 - Page 6
to postpone the time of purchase for a period not exceeding five full business
days in order that necessary changes in the Registration Statement and
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and include
any underwriter substituted under this Section 6.
7. Warranties and Representations of and Indemnity by the Company and
the Underwriters:
(a) The Company warrants and represents in connection with each offering
of Purchased Securities that the Registration Statement has become effective,
that the Registration Statement and the Prospectus fully comply and as of the
date of the Terms Agreement in respect of such Purchased Securities will fully
comply with the provisions of the Act, and, in the case of the Incorporated
Documents, with the Exchange Act, and that neither contains or as of the date
of such Terms Agreement will contain any untrue statement of a material fact or
omits or as of the date of such Terms Agreement will omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that the Company makes no warranty or
representation with respect to any statement contained in, or any matter
omitted from, the Registration Statement or the Prospectus in reliance upon and
in conformity with information furnished in writing by or on behalf of any
Underwriter through you to the Company expressly for use with reference to such
Underwriter in the Registration Statement or Prospectus. The Company warrants
and represents that the Incorporated Documents, at the time they were filed
with the Commission, complied in all material respects with the requirements of
the Exchange Act, and any additional documents deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act will,
when they are filed with the Commission, comply in all material respects with
the requirements of the Exchange Act and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(b) The Company warrants and represents that the Purchased Securities,
when issued in accordance with this agreement, the relevant Terms Agreement and
the Indenture, will be duly issued and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture.
(c) The Company agrees to indemnify, defend and hold harmless each
Underwriter, and any person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
loss, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or controlling
person may incur under the Act or the Exchange Act or otherwise, insofar as
such loss, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof) or in a Prospectus (the term Prospectus for
the purpose of this Section 7(c) being deemed to include any preliminary
prospectus, the Prospectus and the Prospectus as amended or supplemented), or
arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated in either such Registration Statement or
Prospectus or necessary to make the statements made therein not misleading;
provided, however, that the indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such loss, expense, liability or claim purchased the
Purchased Securities which are the subject thereof (or to the benefit of any
person controlling such Underwriter) if the Prospectus corrected any such
alleged untrue statement or omission and if such Underwriter failed to send or
give a copy of the Prospectus to such person at or prior to the written
confirmation of the sale of such Purchased Securities to such person. The
foregoing indemnification shall not cover any such loss, expense, liability or
claim, however, which arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use with reference to such Underwriter in such
Registration Statement or in such Prospectus or arises out of or is based upon
any omission or alleged omission to state a material fact in connection with
such information required to be stated in such Registration Statement or
Prospectus or necessary to make such information not misleading. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Underwriter or any controlling person of that
Underwriter.
If any action is brought against an Underwriter or controlling person in
respect of which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such Underwriter shall promptly notify the Company in
writing or by telephone, confirmed in writing, of the institution of such
action and the Company shall assume the defense of such action, including the
employment of counsel and payment of expenses. Such Underwriter or controlling
person shall have the right to employ its or their own counsel in any such
case, but the
Exhibit 1.1 - Page 7
fees and expenses of such counsel shall be at the expense of such Underwriter
or such controlling person unless the employment of such counsel shall have
been authorized in writing by the Company in connection with the defense of
such action or the Company shall not have employed counsel to have charge of
the defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the Company (in which
case the Company shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which events such
fees and expenses shall be borne by the Company; provided, however, the Company
shall not be obligated to pay the fees and expenses of more than one such
counsel (which shall be selected by you) for the indemnified parties. Anything
in this paragraph to the contrary notwithstanding, the Company shall not be
liable for any settlement of any such claim or action effected without its
written consent. The Company's indemnity agreement contained in this Section
7(c) and its warranties and representations contained in this agreement or
contained in certificates of officers of the Company submitted pursuant hereto
shall remain in full force and effect regardless of any investigation made by
or on behalf of any Underwriter or controlling person, and shall survive any
termination of this Agreement or the Terms Agreement or the issuance, sale and
delivery of the Purchased Securities. The Company agrees promptly to notify
the Underwriters of the commencement of any litigation or proceedings against
the Company or any of its officers or directors in connection with the issuance
and sale of the Purchased Securities or the Registration Statement or
Prospectus.
(d) Each Underwriter warrants and represents that the information
furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use in the Registration Statement or the Prospectus with
reference to such Underwriter does not contain an untrue statement of a
material fact and does not omit to state a material fact in connection with
such information required to be stated in the Registration Statement or the
Prospectus or necessary to make such information not misleading.
(e) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers and any person who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any loss, expense, liability or claim (including
the reasonable cost of investigation) which, jointly or severally, the Company
or any such person may incur under the Act or the Exchange Act or otherwise,
insofar as such loss, expense, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a material fact
contained in and in conformity with information furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use with
reference to such Underwriter in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof), or
in the Prospectus (the term Prospectus for the purpose of this Section 7(e)
being deemed to include any preliminary prospectus, the Prospectus and the
Prospectus as amended or supplemented if the Company shall furnish to the
Underwriters an amended Prospectus or amendments or supplements to the
Prospectus after the date of any Terms Agreement), or arises out of or is based
upon any omission or alleged omission to state a material fact in connection
with such information required to be stated in such Registration Statement or
Prospectus or necessary to make such information not misleading. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to the Company or any of its directors, officers or controlling
persons.
If any action is brought against the Company or any such person in respect
of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing or by telephone, confirmed in writing, of the
institution of such action and such Underwriter shall assume the defense of
such action, including the employment of counsel and payment of expenses. The
Company or such person shall have the right to employ its or his own counsel in
any such case, but the fees and expenses of such counsel shall be at the
expense of the Company or such person unless the employment of such counsel
shall have been authorized in writing by such Underwriter in connection with
the defense of such action or such Underwriter shall not have employed counsel
to have charge of the defense of such action or such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from or additional to those available to such
Underwriter (in which case such Underwriter shall not have the right to direct
the defense of such action on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by such Underwriter;
provided, however, such Underwriter shall not be obligated to pay the fees and
expenses of more than one such counsel (which shall be selected by the Company)
for the indemnified parties. Anything in this paragraph to the contrary
notwithstanding, no Underwriter shall be liable for any settlement of any such
claim or action effected without the written consent of such Underwriter. The
indemnity agreement on the part of each Underwriter contained in this Section
7(e) shall remain in full force and
Exhibit 1.1 - Page 8
effect regardless of any investigation made by or on behalf of the Company or
such person, and shall survive any termination of this Agreement or the Terms
Agreement or the issuance, sale and delivery of the Purchased Securities. Each
Underwriter agrees promptly to notify the Company of the commencement of any
litigation or proceedings against such Underwriter in connection with the
issuance and sale of the Purchased Securities or the Registration Statement or
Prospectus.
8. Parties at Interest: The agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Company, and the
controlling persons, directors and officers referred to in Section 7 hereof,
and their respective successors, assigns, executors and administrators, and no
other person (including a purchaser, as such purchaser, from any of the
Underwriters of any of the Purchased Securities) shall acquire or have any
right under or by virtue of this Agreement.
9. Counterparts: This instrument may be signed by the parties in
counterparts which together shall constitute one and the same agreement between
the parties and shall become effective at such time as each of the parties
shall have signed such counterparts and shall have notified the other party
thereof.
10. Construction: This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
If the foregoing correctly sets forth the understanding between the
Company and you, please so indicate in the space provided below for the
purpose, whereupon this letter and your acceptance shall constitute a binding
agreement between us.
Very truly yours,
ANHEUSER-BUSCH COMPANIES, INC.
By:__________________________
Treasurer
[Underwriter]
By:__________________________
Exhibit 1.1 - Page 9
Schedule I
DELAYED DELIVERY CONTRACT
, 199
ANHEUSER-BUSCH COMPANIES, INC.
One Busch Place
St. Louis, Missouri 63118
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Anheuser-Busch Companies,
Inc. (the Company), and the Company agrees to sell to the undersigned,
$________________________________
principal amount of the Company's (state title of issue) (the Securities)
offered by the Company's Prospectus dated ______________, 1995 and a Prospectus
Supplement dated _______, 199_, receipt of copies of which is hereby
acknowledged, at a purchase price of ___% of the principal amount thereof plus
accrued interest and on the further terms and conditions set forth in this
contract.
The undersigned agrees to purchase such Securities in the principal
amounts and on the delivery dates (the Delivery Dates) set forth below:
Delivery Principal Plus Accrued
Date Amount Interest From:
---- ------ --------------
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
_______________________ ________________________ _________________________
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company or its order by certified or
official bank check in immediately available funds at the Corporate Trust
Office of Chemical Bank (or at such other place as the undersigned and the
Company shall agree) at 11:00 A.M., New York City Time, on such Delivery Date
upon issuance and delivery to the undersigned of the Securities to be purchased
by the undersigned on such Delivery Date in such authorized denominations and
registered in such names as the undersigned may designate by written or
telegraphic communications addressed to the Company not less than five full
business days prior to such Delivery Date.
The obligation of the Company to sell and deliver, and of the undersigned
to take delivery of and make payment for, Securities on each Delivery Date
shall be subject to the conditions that (1) the purchase of Securities to be
made by the undersigned shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which the undersigned is subject and (2) the
Company shall have sold, and delivery shall have taken place, to Underwriters
of such principal amount of the Securities as is to be sold and delivered to
them.
Promptly after completion of the sale and delivery to the Underwriters,
the Company will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by copies of the opinions of counsel
for the Company delivered to the Underwriters.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
The undersigned represents and warrants that (a) as of the date of this
contract, the undersigned is not prohibited under the laws of the jurisdictions
to which the undersigned is subject from purchasing the Securities hereby
agreed to be purchased and (b) the undersigned does not contemplate selling the
Securities which it has agreed to purchase hereunder prior to the Delivery Date
therefore.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other. This contract shall be
governed by and construed in accordance with the laws of the State of New York.
This contract may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
It is understood that the acceptance of any Delayed Delivery Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If the contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This will become a binding contract between the
Company and the undersigned when such counterpart is so signed.
Very truly yours,
________________________________________
By: ___________________________________
________________________________________
________________________________________
Address
Accepted, as of the date first above written
Anheuser-Busch Companies, Inc.
By: ________________________________________
Exhibit 1.1 - Page 2
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows:
(Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
EXHIBIT 1.2
__________________, 199__
[LOGO] ANHEUSER-BUSCH COMPANIES, INC.
MEDIUM-TERM NOTES
DISTRIBUTION AGREEMENT
[Agent(s)]
Dear Sirs:
Anheuser-Busch Companies, Inc., a Delaware corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale by
the Company of up to $___________ aggregate principal amount of its Medium-Term
Notes (or the equivalent thereof in other currencies including composite
currencies)(the "Securities"). The Securities are to be issued under an
Indenture dated as of ___________, ____ (the "Indenture") between the Company
and _________________ (the "Trustee") and will be issued in such currencies and
in such denominations thereof and will bear interest at such rates to be
provided in a supplement to the Prospectus referred to below. Pursuant to a
Supplemental Agreement, to be delivered on or prior to the date of initial
issuance of the Securities, Anheuser-Busch, Incorporated, a wholly-owned
subsidiary of the Company, will agree to be jointly and severally liable with
the Company in respect of the payment of the Securities.
The Company hereby appoints each of you as its agent ("Agent"), on a
non-exclusive basis, for the purpose of soliciting offers to purchase the
Securities from the Company by others and, on the basis of the representations
and warranties herein contained, but subject to the terms and conditions herein
set forth, each of you agrees to use your reasonable best efforts to solicit
offers to purchase Securities upon terms acceptable to the Company at such
times and in such amounts as the Company shall from time to time specify. In
addition, any Agent may also purchase Securities as principal pursuant to a
Terms Agreement (as defined herein) relating to such sale in accordance with
the provisions of Section 2(b) hereof. Each of you shall communicate to the
Company, orally or in writing, each offer to purchase Securities received by
you as Agent which in the judgment of the Agent should be considered by the
Company. The Company shall have the sole right to accept offers to purchase
Securities and may reject any offer in whole or in part. Each of you shall
have the right to reject any offer to purchase Securities which the Agent
receiving the offer considers to be unacceptable, and any such rejection shall
not be deemed a breach of your agreements contained herein. In acting under
this Agreement and in connection with the sale of any Securities by the Company
(other than Securities sold to any of you pursuant to a Terms Agreement), each
of you is acting solely as an Agent of the Company and does not assume any
obligation towards or relationship of agency or trust with any purchaser of the
Securities.
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of you as follows:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") registration statements
on such Form (Registration No. ___________ and No. 33-49051) which became
effective on _____________, 1995, and September 28, 1992, respectively, for the
registration under the Act of the Securities. Such registration statements,
including the prospectus constituting a part thereof and the exhibits thereto,
as amended at the date of the sale of any Securities, are hereinafter together
referred to as the "Registration Statement." The Indenture has been qualified
under the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
Company has duly authorized the issuance of the Securities. The Registration
Statement, as amended at the date of this Agreement, meets the requirements set
forth in Rule 415(a)(1)(x) under the Act and complies in all other material
aspects with said Rule. The Company proposes to file with the Commission from
time to time, pursuant to Rule 424(b) under the Act, supplements to the
prospectus relating to the Securities included in the Registration Statement
which will describe certain terms of the Securities and prior to any such
filing will advise each of you of all further information (financial and other)
with respect to the Company to be set forth therein. Such prospectus in the
form in which it appears in the Registration Statement is called the "Basic
Prospectus". The term "Prospectus" means the Basic Prospectus together with
the prospectus supplement or supplements specifically relating to any
Securities sold pursuant to this Agreement (the "Prospectus Supplement"), as
filed with, or included for filing to, the Commission pursuant to Rule 424
under the Act. Any reference herein to the Registration Statement, Basic
Prospectus and Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934 (the "Exchange Act").
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied, or will
comply, when so filed in all material respects with such Act and the rules and
regulations thereunder, (ii) each part of the Registration Statement (including
the documents incorporated by reference therein), filed with the Commission
pursuant to the Act relating to the Securities, when such part became
effective, did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will comply
in all material respects with the Act and the applicable rules and regulations
thereunder and (iv) the Registration Statement and the Prospectus at the date
of the Prospectus Supplement do not contain and, as further amended or
supplemented, if applicable, as of their respective dates, will not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except that the representations and warranties set forth in this
Section 1(b) do not apply to statements or omissions in the Registration
Statement or the Prospectus which are based upon information furnished to the
Company in writing by each of you expressly for use therein.
2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each of you will use your reasonable best efforts to solicit offers to
purchase the Securities upon the terms and conditions set forth in the
Prospectus as then amended or supplemented; provided, however, that each of you
hereby represents and agrees that you will not make any representations or use
any information other than that set forth in the Prospectus as then amended or
supplemented or solicit any offer to purchase the Securities other than by
means of the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct each
of you to suspend at any time, for any period of time or permanently, the
solicitations of offers to purchase the Securities. Upon receipt of notice
from the Company, you will forthwith suspend solicitations of offers to
purchase Securities from the Company until such time as the Company has advised
you that such solicitation may be resumed. During the period of time that this
Agreement is suspended the Company shall not be required to deliver any
opinions or letters in accordance with Sections 3(i) and (j); provided,
however, that none of you shall be required to resume soliciting offers to
purchase Securities until the Company has delivered such opinions or letters as
requested by any of you if any of the events described in Sections 3(i) and (j)
have occurred during the period of suspension.
The Company agrees to pay each Agent, as consideration for the sale of any
Securities resulting from a solicitation made by you, a commission in the form
of a discount from the principal amount of each Security sold by the Company
hereunder equal to the applicable amounts set forth in Schedule A attached
hereto or such other amounts as may be agreed to by the Company and such Agent.
(b) Purchases as Principal. Each sale of Securities to an Agent
acting as principal shall be made in accordance with the terms of this
Agreement and a separate agreement which will provide for the sale of such
Securities and the purchase and re-offering thereof by such Agents who are
parties thereto. Each
Distribution Agreement Exhibit 1.2 - Page 2
such separate agreement (which may be substantially in the form of Exhibit A
hereto or which may be an oral agreement confirmed by an exchange of a standard
form of a written confirmation between an Agent and the Company) is herein
referred to as a "Terms Agreement". An Agent's commitment to purchase
Securities as principal whether pursuant to a Terms Agreement in the form of
Exhibit A hereto or pursuant to such written confirmation thereof shall be
deemed to have been made on the basis of the representations and warranties of
the Company herein contained and shall be subject to the terms and conditions
herein set forth. Each agreement by an Agent to purchase Securities as
principal (whether pursuant to a Terms Agreement substantially in the form of
Exhibit A hereto or a written confirmation thereof) shall specify the principal
amount of Securities to be purchased pursuant thereto, the maturity date
thereof, the price to be paid to the Company for such Securities, interest rate
and interest rate formula, if any, applicable to such Securities and any other
terms of such Securities, and the time and place of delivery of and payment for
such Securities (the "Settlement Date"). Such Terms Agreement shall also
specify any requirements for officers' certificates, opinions of counsel and
letters from the independent public accountants of the Company pursuant to
Section 4 hereof.
Unless otherwise specified in the Terms Agreement, Notes which an Agent
purchases as principal may be resold to other dealers. Any such sales in
connection with fixed price offerings shall be at a discount which shall not
exceed the amount set forth in the Prospectus, as amended or supplemented in
connection with the sale of such Notes.
(c) Procedures. Each of you and the Company agree to perform the
respective duties and obligations specifically provided to be performed
pursuant to written administrative procedures, if any, as may be agreed by each
of you and the Company from time to time (the "Procedures"). The Procedures
may be amended only by written agreement of the Company and each of you.
(d) Delivery. The documents required to be delivered by Section 4
of this Agreement shall be delivered at your office not later than 6:00 p.m.
New York time on the date of the first sale of Securities hereunder, or at such
other time as you and the Company may agree upon in writing as the closing date
for this Agreement (the "Closing Date").
3. Agreements. The Company agrees with each of you that:
(a) Prior to the termination of the offering of the Securities
pursuant to this Agreement, the Company will not file any amendment of the
Registration Statement or any Prospectus Supplement relating to the Securities
unless the Company has previously furnished to each of you a copy thereof for
your review and will not file any such proposed amendment or supplement to
which any of you reasonably object; provided, however, that the foregoing
requirement shall not apply (i) to any of the Company's periodic filings with
the Commission required to be filed pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, copies of which filings the Company will cause to be
delivered of you promptly after being mailed for filing with the Commission, or
(ii) to any supplements which specify the terms of securities offered pursuant
to arrangements with other purchasers or agents. Subject to the foregoing
sentence, the Company will promptly cause each Prospectus Supplement to be
mailed to the Commission for filing pursuant to Rule 424(b) or will promptly
cause each Prospectus Supplement to be filed with the Commission pursuant to
said Rule. The Company will promptly advise you (i) of the filing of any
amendment or supplement (except as referred to above in this paragraph) to the
Basic Prospectus, (ii) of the filing and effectiveness of any amendment to the
Registration Statement, (iii) of any request by the Commission for any
amendment to the Basic Prospectus or for any additional information in respect
thereof, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to any other suspension of the
qualification of the Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose. The Company will use its
reasonable best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
Distribution Agreement Exhibit 1.2 - Page 3
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs or condition exists as
a result of which the Registration Statement or the Prospectus as then amended
or supplemented would include an untrue statement of a material fact, or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if,
in the opinion of the Company, it is necessary at any time to amend or
supplement the Registration Statement or the Basic Prospectus, as then amended
or supplemented, to comply with the Act, the Company promptly will notify you
to suspend solicitation of offers to purchase Securities and, if so notified by
the Company, you shall forthwith suspend such solicitation and cease using the
Prospectus, as then amended or supplemented; and in such circumstance, the
Company shall amend or supplement the Registration Statement or Prospectus, as
then amended or supplemented, the Company will so advise you promptly by
telephone (with confirmation in writing) and will prepare and cause to be filed
promptly with the Commission an amendment or supplement to the Registration
Statement or Prospectus, as then amended or supplemented, which will include a
description of such facts or events and/or will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to each of you in such quantities as each of you may reasonably
request; and, if such amendment or supplement and any documents, certificates
and opinions furnished to each of you pursuant to paragraphs (h), (i) and (j)
below in connection with the preparation or filing of such amendment or
supplement are reasonably satisfactory in all respects to each of you, upon the
filing of such amendment or supplement with the Commission or effectiveness of
an amendment to the Registration Statement you will resume the solicitation of
offers to purchase Securities hereunder. Notwithstanding the foregoing, the
provisions of this Section may be modified by the parties in any Terms
Agreement or schedule thereto.
(c) The Company will make generally available to its security
holders and to you as soon as practicable an earnings statement covering a
twelve-month period beginning after the date of the sale of any Securities
hereunder which shall satisfy the provisions of Section 11(a) of the Act and
the applicable rules and regulations thereunder.
(d) The Company will furnish to you without charge a copy of the
Registration Statement including exhibits and, if any of you so request,
materials, if any, incorporated by reference therein and, during the period
mentioned in Section 3(b) above, as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and amendments
thereto as you may reasonably request. The terms "supplement" and "amendment"
or "amend" as used in this Agreement shall include all documents filed by the
Company with the Commission subsequent to the date of the Basic Prospectus,
pursuant to the Exchange Act, which are deemed to be incorporated by reference
in the Prospectus.
(e) The Company will arrange to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as any of you
shall reasonably request and to pay all expenses (including reasonable fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Securities for
investment under the laws of such jurisdictions as any of you may designate;
provided, however, that the Company shall not be obligated to enter into any
general consent to service of process or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified.
(f) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and all amendments thereto, (ii) the
preparation, issuance and delivery of the Securities, (iii) the fees and
disbursements of the Company's accountants and of the Trustee and its counsel,
(iv) the reasonable fees and disbursements of your counsel in connection with
the preparation of this Agreement and the prospectus supplement relating to the
Securities, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(e), including filing fees and the
reasonable fees and disbursements to counsel in connection therewith and in
connection with the preparation of any Blue Sky Memorandum and any Legal
Investment Memorandum, (vi) the printing and delivery to you in quantities as
hereinabove stated of copies of the Registration Statement and all amendments
or supplements thereto, (vii) the printing and delivery to you of copies of the
Indenture and any Blue Sky Memorandum and Legal Investment
Distribution Agreement Exhibit 1.2 - Page 4
Memorandum, (viii) any fees charged by rating agencies for the rating of the
Securities, (ix) any advertising expenses incurred with the approval of the
Company and (x) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.
(g) Each acceptance by the Company of an offer for the purchase of
Securities and each sale of Securities to any of you pursuant to a Terms
Agreement shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any certificate
theretofore delivered to any of you pursuant hereto are true and correct in all
material respects at the time of such acceptance or sale, as the case may be,
and an undertaking that such representations and warranties will be true and
correct in all material respects at the time of delivery to the purchaser or
his agent, or to each of you of the Securities relating to such acceptance or
sale, as the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and the Basic Prospectus as amended and supplemented to
each such time).
(h) Each time the Registration Statement or the Basic Prospectus is
amended or supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates or maturities offered on the
Securities, for a change deemed immaterial in your reasonable opinion or for
the terms of securities not being offered by you), or if so indicated in the
applicable Terms Agreement, each time the Company sells Securities to any of
you pursuant to a Terms Agreement, the Company will deliver or cause to be
delivered forthwith to the applicable Agent a certificate of the Company signed
by the Chairman of the Board, the President, any Vice Chairman, the Treasurer,
any Assistant Treasurer or any Vice President, dated the date of the
effectiveness of such amendment or the date of filing of such supplement, or
the date of such sale, as the case may be, in form reasonably satisfactory to
the applicable agent, to the effect that the statements of the Company
contained in the certificate referred to in Section 4(c) which was last
furnished to such Agent (either pursuant to Section 4(c) or pursuant to this
Section 3(h)), are true and correct as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in Section 4(c) relating to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
certificate.
(i) Each time the Registration Statement or the Basic Prospectus is
amended or supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates or maturities offered on the
Securities, for a change deemed immaterial in your reasonable opinion or for
the terms of securities not being offered by you), if in your reasonable
judgment the information contained in the amendment or supplement is of such a
nature that opinions of counsel should be furnished, or if so indicated in the
applicable Terms Agreement, each time the Company sells Securities to any of
you pursuant to a Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to the applicable Agent a written opinion of counsel for
the Company. Any such opinion shall be dated the date of the effectiveness of
such amendment or the date of filing of such supplement, or the date of such
sale, as the case may be, in a form satisfactory to such Agent and shall be of
the same tenor as the opinion referred to in Section 4(b)(i) but modified to
relate to the Registration Statement and the Basic Prospectus as amended and
supplemented to the time of delivery of such opinions. In lieu of any opinion,
counsel last furnishing such an opinion to such Agent may furnish to such Agent
a letter to the effect as though it were dated the date of such letter
authorizing reliance on such last opinion (except that statements in such last
opinion will be deemed to relate to the Registration Statement and the Basic
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance).
(j) Each time the Registration Statement or the Basic Prospectus is
amended or supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates or maturities offered on the
Securities, for a change deemed immaterial in your reasonable opinion or for
the terms of securities not being offered by you), or to set forth amended or
supplemental financial information which is included or incorporated by
reference in the Registration Statement or the Basic Prospectus, or if so
indicated in the applicable Terms Agreement, each time the Company sells
Securities
Distribution Agreement Exhibit 1.2 - Page 5
to any of you pursuant to a Terms Agreement, any of you may request in writing
that the Company cause its independent public accountants forthwith to furnish
such Agent with a letter, dated the date of the effectiveness of such amendment
or the date of filing of such supplement, or the date of such sale, as the case
may be, in a form reasonably satisfactory to such Agent, of the same tenor as
the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in the
Registration Statement and the Prospectus, as amended or supplemented to the
date of such letter. If the Company elects not to furnish the requesting Agent
with such a letter, such Agent shall have no further obligation to purchase, or
to solicit offers to purchase, Securities pursuant to this Agreement or any
Terms Agreement.
(k) Between the date of any Terms Agreement and the Settlement Date
with respect to such Terms Agreement, the Company will not, without the prior
consent of the Agent or Agents who are parties to such Terms Agreement, offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company substantially similar to the Securities (other than (i) the Securities
that are to be sold pursuant to such Terms Agreement or any other Terms
Agreement under this Distribution Agreement, (ii) debt securities issued for
consideration other than cash and (iii) commercial paper in the ordinary course
of business), except as may otherwise be provided in any such Terms Agreement.
(l) The Company will not issue any Securities except as have been
duly authorized by all necessary corporate action on the part of the Company.
4. Conditions of the Obligations of the Agent. Your obligations to
solicit offers to purchase the Securities as Agent of the Company and to
purchase Securities pursuant to any Terms Agreement will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's officers made in
each certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all covenants and agreements
herein contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) no stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for that purpose shall have
been instituted or threatened, and there shall have been no material adverse
change in the condition of the Company and its subsidiaries, taken as a whole,
from that set forth in the Registration Statement or the Prospectus as amended
or supplemented to such date.
(b) At the Closing Date, each of you shall have received, and at
each Settlement Date with respect to any applicable Terms Agreement, if called
for by such Terms Agreement, each of you who is a party to the Terms Agreement
shall have received:
(i) an opinion of the General Counsel or Associate General
Counsel of the Company and of Armstrong, Teasdale, Schlafly & Davis, each dated
as of such date, substantially in the forms heretofore delivered to each of
you; and
(ii) the opinion, dated as of such date, of your counsel, in
form reasonably satisfactory to each of you.
(c) On the Closing Date, the Company shall have furnished to each of
you and at each Settlement Date with respect to any Terms Agreement, the
Company shall have furnished to the applicable Agent a certificate of the
Company, signed by the Chairman of the Board, the President, the Vice Chairman
of the Board, the Treasurer, any Assistant Treasurer, any Vice Chairman or any
Vice President, dated as of the Closing Date or such Settlement Date, to the
effect that the signer of such certificate has examined the Registration
Statement, the Basic Prospectus, any Prospectus Supplement and this Agreement
and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the date
of such certificate, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the date of such certificate;
Distribution Agreement Exhibit 1.2 - Page 6
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus, as amended or
supplemented, there has been no material adverse change in the condition of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement and the Prospectus as amended or supplemented.
(d) On the Closing Date the Company's independent public accountants
shall have furnished to each of you and at each Settlement Date with respect to
any Terms Agreement, if called for by such Terms Agreement, the Company's
independent public accountants shall have furnished to the applicable Agent a
letter or letters, dated as of the Closing Date or such Settlement Date, in
form and substance reasonably satisfactory to you confirming that they are
independent accountants within the meaning of the Act and the Exchange Act and
the respective applicable published rules and regulations thereunder, and
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus.
(e) On the Closing Date, and at each Settlement Date with respect to
any Terms Agreement, the Company shall have furnished to each of you such
appropriate further information, certificates and documents as each of you may
reasonably request.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each of you
and each person, if any, who controls any of you within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages or liabilities (including the reasonable fees
and expenses of counsel in connection with any governmental or regulatory
investigation or proceeding) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof or the Prospectus (if used within
the period set forth in paragraph (b) of Section 3 hereof and as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability is caused by
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein based upon information furnished in writing to the
Company by any of you specifically for use in connection with the preparation
thereof.
(b) Each Agent agrees severally to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and
any person controlling the Company to the same extent as the foregoing
indemnity from the Company to each of you, but only with reference to
information relating to such Agent furnished in writing by such Agent expressly
for use in the Registration Statement or the Prospectus.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
Distribution Agreement Exhibit 1.2 - Page 7
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such reasonable fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by you in the case of parties indemnified pursuant to
paragraph (b) above and by the Company in the case of parties indemnified
pursuant to paragraph (a) above. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party under paragraph (a) or (b) hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and each of you on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and each of you on the other
hand in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and each of you on the other hand in connection with the offering of the
Securities shall be deemed to be in the same proportion as the total net
proceeds from the offering of such Securities (before deducting expenses)
received by the Company bear to the total commissions received by each of you
in respect thereof. The relative fault of the Company on the one hand and each
of you on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by any of you and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company and each of you agree that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation or by any other method of allocation which does not take
account of the considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, none of you shall be required
to contribute any amount in excess of the amount by which the total price at
which the Securities offered and sold to the public through you exceeds the
amount of any damages which you have otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
6. Position of the Agent. In soliciting offers to purchase the
Securities, each of you is acting solely as agent for the Company, and not as
principal. Each of you shall use your reasonable best efforts to assist the
Company in obtaining performance by each purchaser whose offer to purchase
Securities has been solicited by each of you and accepted by the Company, but
none of you shall have any liability to the Company in the event any such
purchase is not consummated for any reason.
Distribution Agreement Exhibit 1.2 - Page 8
7. Termination. This Agreement may be terminated at any time either by
the Company or by any Agent with respect to such Agreement upon the giving of
written notice of such termination to the other parties hereto. Any Terms
Agreement may be terminated, immediately upon notice to the Company, at any
time prior to the Settlement Date relating to a Terms Agreement (i) if, after
the date of execution of the Terms Agreement, there has been, since the
respective dates as of which information is given in the Registration
Statement, as amended, any material adverse change or any development that
would reasonably be expected to result in a material adverse change in the
condition of the Company and its subsidiaries, taken as a whole, or (ii) if,
after the date of execution of the Terms Agreement, there has occurred any
outbreak or escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
your judgment, impracticable to market the Securities, or (iii) if trading
generally on the New York Stock Exchange has been suspended or materially
limited or a general moratorium on commercial banking activities has been
declared by either Federal or New York State authorities. In the event of
termination of this Agreement or any Terms Agreement, no party shall have any
liability to the other parties hereto, except as provided in Sections 2(a),
3(b), 3(c), 3(f), 5 and 6 and except that, if at the time of termination an
offer to purchase any of the Securities has been accepted by the Company but
the time of delivery to the purchaser or its agent of the Security or
Securities relating thereto has not occurred, the Company's obligations
provided in Sections 2(b), 2(c), 3(a), 3(g) through 3(k) and 4 shall not be
terminated.
8. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and each of you set forth in or made pursuant to
this Agreement or any Terms Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any of you or the
Company or any of the officers, directors or controlling persons referred to in
Section 5 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 2(a), 3(f), 5 and 6 hereof shall survive the
termination or cancellation of this Agreement or any Terms Agreement.
9. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any of you, will be mailed,
delivered, sent via telex or facsimile transmission or telegraphed and
confirmed at the following addresses:
or, if sent to the Company, will be mailed, delivered, sent via facsimile
transmission (314-577-7622 or 577-2900) or telegraphed and confirmed to it at
One Busch Place, St. Louis, Missouri 63118, Attention:
Distribution Agreement Exhibit 1.2 - Page 9
Distribution Agreement10 Treasurer; with copies to the Secretary and to the
General Counsel at the same address. Such addresses for notices may be changed
by any party by written notice to the others as aforesaid.
10. Successors. This Agreement and any Terms Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to
in Section 5 hereof, and no other person will have any right or obligation
hereunder.
11. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and each of you.
Very truly yours,
Anheuser-Busch Companies, Inc.
By: __________________________
Title: _______________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
[Agent(s)]
Distribution Agreement Exhibit 1.2 - Page 10
Schedule A
----------
Maturity Range Fee
-------------- ---
EXHIBIT A TO DISTRIBUTION AGREEMENT
[LOGO] ANHEUSER-BUSCH COMPANIES, INC.
[TITLE OF SECURITIES]
TERMS AGREEMENT
[DATE]
[Underwriter/Distribution Agent]
Dear Sirs:
Anheuser-Busch Companies, Inc. (the "Company") proposes, subject to the
terms and conditions stated herein and in the Distribution Agreement, dated
_________________ (the "Distribution Agreement"), between the Company and the
Agents named therein to issue and sell to you, as principal, the securities
specified in the Schedule hereto (the "Purchased Securities"). Each of the
provisions of the Distribution Agreement is incorporated herein by reference in
its entirety (except as otherwise provided in the Schedule hereto), and shall
be deemed to be part of this Agreement to the same extent as if such provisions
had been set forth in full herein. Capitalized terms not defined herein shall
have the meanings set forth in the Distribution Agreement.
Nothing contained herein shall make you an agent of the Company. Each
of the representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Terms Agreement, except that each
representation and warranty with respect to the Prospectus in Section 1 of the
Distribution Agreement shall be deemed to be a representation and warranty as
of the date of the Distribution Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Terms Agreement in relation to the Prospectus Supplement (as defined in the
Distribution Agreement) which relates to the Purchased Securities.
A Prospectus Supplement relating to the Purchased Securities, in the
form heretofore delivered to you, is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to you and you agree to purchase from the Company the Purchased
Securities, at the time and place and in the principal amount set forth in the
Schedule hereto.
[procedures for payment and purchase]
Between the date of this Terms Agreement and the Settlement Date
hereunder, the Company will not, without your prior consent, offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
substantially similar to the Purchased Securities other than (i) securities of
the Company
Distribution Agreement A-1
that are to be sold pursuant to this or any other Terms Agreement under the
Distribution Agreement, (ii) debt securities issued for consideration other
than cash and (iii) commercial paper in the ordinary course of business.
If the foregoing is in accordance with your understanding, please sign
and return to us three counterparts hereof, and upon acceptance hereof by you
of this letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
This Agreement shall be in the form of an executed writing (which may be
in counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted.
Anheuser-Busch Companies, Inc.
By: __________________________
Authorized Officer
Accepted:
[Underwriter/Distribution Agent]
By: _________________________
Title: ______________________
Distribution Agreement A-2
[Schedule to Terms Agreement]
Title of Purchased Securities:
Aggregate principal amount:
Denominations:
Price to Public:
Purchase Price:
Specified funds for payment of purchase price:
Maturity:
Interest Rate:
Interest Payment Dates:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Time of Delivery:
Closing Location:
Closing Documents:
Distribution Agreement A-3
STATEMENT OF DIFFERENCES
The upper left-hand corners of the actual Distribution Agreement and Terms
Agreement will each contain a one inch square corporate logo of Anheuser-Busch
Companies, Inc. The corporate logo consists of a silver "A" and a white eagle
on a blue background.
Exhibit 4.1
==============================================================================
Anheuser-Busch Companies, Inc.
to
Chemical Bank
Trustee
--------------------------------
Indenture
Dated as of ________________, 1995
--------------------------------
Debt Securities
==============================================================================
CROSS REFERENCE SHEET
between
The Indenture
and
The Trust Indenture Act of 1939
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
310 (a)(1) . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . 608, 610
(c) . . . . . . . . . . . . . . Not Applicable
311 (a) . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . Not Applicable
312 (a) . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . 702(c)
313 (a) . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . 703(a), 703(b)
(d) . . . . . . . . . . . . . . 703(b)
314 (a) . . . . . . . . . . . . . . 704, 1104
(b) . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . Not Applicable
315 (a) . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . 602, 703
(c) . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . 601(a)
(d)(2) . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . 514
316 (a)(1)(A) . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . 104(e)
317 (a)(1) . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . 1003
318 (a) . . . . . . . . . . . . . . 107
NOTE: This cross reference sheet shall not, for any purpose, be deemed to
be a part of the Indenture.
TABLE OF CONTENTS
PAGE
Parties . . . . . . . . . . . . . . . . . . 1
Recitals of The Company . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions . . . . . . . . . . . . . . . . 1
ABI . . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . 2
Affiliate; control . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . 2
Authorizing Resolution . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . 2
Company Request; Company Order . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . 2
Defaulted Interest . . . . . . . . . . . . . 2
Depositary . . . . . . . . . . . . . . . . . 2
Extendible Securities . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . 3
Funded Debt . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . 3
Interest . . . . . . . . . . . . . . . . . . 3
Interest Payment Date . . . . . . . . . . . 4
Issue . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . 4
Maturity Date . . . . . . . . . . . . . . . 4
Net Tangible Assets . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . 4
Original Issue Date . . . . . . . . . . . . 4
Original Issue Discount Securities . . . . . 4
Outstanding . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . 5
i
Principal Plant . . . . . . . . . . . . . . 5
Redeemable Securities . . . . . . . . . . . 5
Redemption Date . . . . . . . . . . . . . . 5
Redemption Price . . . . . . . . . . . . . . 5
Regular Record Date . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . 6
Restricted Subsidiary . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . 6
Security Register; Security Registrar . . . 6
Series . . . . . . . . . . . . . . . . . . . 6
Sinking Fund . . . . . . . . . . . . . . . . 6
Sinking Fund Securities . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . 6
Supplemental Agreement . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act; TIA . . . . . . . . . . 7
Unrestricted Subsidiary . . . . . . . . . . 7
Yield to Maturity . . . . . . . . . . . . . 7
Section 102. Compliance Certificates and Opinions . . . . 7
Section 103. Form of Documents Delivered to Trustee . . . 8
Section 104. Acts of Holders . . . . . . . . . . . . . . 8
Section 105. Notices, etc., to Trustee and Company . . . 9
Section 106. Notices to Holders; Waiver . . . . . . . . . 9
Section 107. Conflict with Trust Indenture Act . . . . . 9
Section 108. Effect of Headings and Table of Contents . . 9
Section 109. Successors and Assigns . . . . . . . . . . . 9
Section 110. Separability Clause . . . . . . . . . . . . 10
Section 111. Benefits of Indenture . . . . . . . . . . . 10
Section 112. Governing Law . . . . . . . . . . . . . . . 10
Section 113. Legal Holidays . . . . . . . . . . . . . . . 10
Section 114. Act of Holders when Securities are
Denominated in Different Currencies . . . . 10
Section 115. Monies of Different Currencies to be
Segregated . . . . . . . . . . . . . . . . . 10
Section 116. Payment to be in Proper Currency . . . . . . 11
ARTICLE TWO
Security Forms
Section 201. Forms Generally . . . . . . . . . . . . . . 11
Section 202. Form of Face of Security . . . . . . . . . . 12
Section 203. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . 14
Section 204. Form of Reverse of Security . . . . . . . . 14
ii
ARTICLE THREE
The Securities
Section 301. Title and Terms . . . . . . . . . . . . . . 17
Section 302. Denominations . . . . . . . . . . . . . . . 19
Section 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . 19
Section 304. Temporary Securities . . . . . . . . . . . . 21
Section 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . 21
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . 23
Section 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . 23
Section 308. Persons Deemed Owners . . . . . . . . . . . 24
Section 309. Cancellation . . . . . . . . . . . . . . . . 25
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture . . 25
Section 402. Application of Trust Money . . . . . . . . . 26
ARTICLE FIVE
Remedies
Section 501. Events of Default . . . . . . . . . . . . . 26
Section 502. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . 27
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . 29
Section 504. Trustee May File Proofs of Claim . . . . . . 29
Section 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . 30
Section 506. Application of Money Collected . . . . . . . 30
Section 507. Limitation on Suits . . . . . . . . . . . . 31
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . 31
Section 509. Restoration of Rights and Remedies . . . . . 32
Section 510. Rights and Remedies Cumulative . . . . . . . 32
Section 511. Delay or Omission Not Waiver . . . . . . . . 32
Section 512. Control by Holders . . . . . . . . . . . . . 32
Section 513. Waiver of Past Defaults . . . . . . . . . . 32
Section 514. Undertaking for Costs . . . . . . . . . . . 33
Section 515. Waiver of Stay or Extension Laws . . . . . . 33
Section 516. Exemption from Individual Liability . . . . 33
iii
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities . . . . 34
Section 602. Notice of Defaults . . . . . . . . . . . . . 35
Section 603. Certain Rights of Trustee . . . . . . . . . 35
Section 604. Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . . . 36
Section 605. May Hold Securities . . . . . . . . . . . . 36
Section 606. Money Held in Trust . . . . . . . . . . . . 36
Section 607. Compensation and Reimbursement . . . . . . . 36
Section 608. Disqualification; Conflicting Interests . . 37
Section 609. Corporate Trustee Required; Eligibility . . 37
Section 610. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . . . . 37
Section 611. Acceptance of Appointment by Successor . . . 39
Section 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . 40
ARTICLE SEVEN
Holders' Lists and Reports By Trustee and Company
Section 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . 40
Section 702. Preservation of Information; Communications
to Holders . . . . . . . . . . . . . . . . . 40
Section 703. Reports by Trustee . . . . . . . . . . . . . 41
Section 704. Reports by Company . . . . . . . . . . . . . 41
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc., only on
Certain Terms . . . . . . . . . . . . . . . 42
Section 802. Successor Corporation Substituted . . . . . 43
Section 803. Evidence to be Furnished Trustee . . . . . . 43
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures without Consent
of Holders . . . . . . . . . . . . . . . . . 43
Section 902. Supplemental Indentures with Consent
of Holders . . . . . . . . . . . . . . . . . 44
Section 903. Execution of Supplemental Indentures . . . . 45
Section 904. Effect of Supplemental Indentures . . . . . 45
Section 905. Conformity with Trust Indenture Act . . . . 45
Section 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . 45
iv
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest . 45
Section 1002. Maintenance of Office or Agency . . . . . . 45
Section 1003. Money for Security Payments to be Held in
Trust; Appointment of Paying Agent . . . . . 46
Section 1004. Statement as to Default . . . . . . . . . . 47
Section 1005. Corporate Existence . . . . . . . . . . . . 47
Section 1006. Limitation upon Liens . . . . . . . . . . . 47
Section 1007. Sale-Leaseback Transactions Relating
to Principal Plants . . . . . . . . . . . . 49
Section 1008. Limitation Upon Funded Debt of
Restricted Subsidiaries . . . . . . . . . . 51
Section 1009. Maintenance of Insurance . . . . . . . . . . 51
Section 1010. Waiver of Certain Covenants . . . . . . . . 51
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Right of Redemption . . . . . . . . . . . . 52
Section 1102. Applicability of Article . . . . . . . . . . 52
Section 1103. Election to Redeem; Notice to Trustee . . . 52
Section 1104. Selection by Trustee of Securities
to be Redeemed . . . . . . . . . . . . . . . 52
Section 1105. Notice of Redemption . . . . . . . . . . . . 53
Section 1106. Deposit of Redemption Price . . . . . . . . 53
Section 1107. Securities Payable on Redemption Date . . . 53
Section 1108. Securities Redeemed in Part . . . . . . . . 54
ARTICLE TWELVE
Sinking Fund
Section 1201. Sinking Fund Payments . . . . . . . . . . . 54
Section 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . 54
Section 1203. Redemption of Securities for Sinking Fund . 55
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Defeasance . . . . . . . . . . . . . . . . 55
Section 1302. Covenant Defeasance . . . . . . . . . . . . 55
Section 1303. Conditions to Defeasance or
Covenant Defeasance . . . . . . . . . . . . 56
Section 1304. Application of Funds . . . . . . . . . . . 57
Section 1305. Reinstatement . . . . . . . . . . . . . . . 57
Signatures . . . . . . . . . . . . . . . . . . . . . . 58
v
THIS INDENTURE, dated as of ___________, 199_, is between Anheuser-Busch
Companies, Inc., a Delaware corporation (hereinafter called the "Company")
having its principal office at One Busch Place, St. Louis, Missouri 63118, and
Chemical Bank, a New York corporation (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured notes,
debentures or other evidences of indebtedness (collectively, the "Securities"),
to be issued from time to time in one or more series (a "Series") as provided
in this Indenture and as shall be provided, in respect of any Series, in or
pursuant to the Authorizing Resolution hereinafter referred to and in the
indenture supplemental hereto (if any) relating to such Series.
Until the Company otherwise elects as provided herein, Anheuser-Busch,
Incorporated ("ABI"), a Missouri corporation which is a wholly-owned subsidiary
of the Company, will be jointly and severally liable with the Company for
payment of the principal of, and premium, if any, and interest on the
Securities, pursuant to a Supplemental Agreement for each Series, subject to
the limitations set forth in such Supplemental Agreement.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Now Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Securities from time to time by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) the words "herein," "hereof," "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
Exhibit 4.1 - Page 1
"ABI" means Anheuser-Busch, Incorporated, a Missouri corporation which is
a wholly-owned subsidiary of the Company, and its successors and assigns.
"Act" when used with respect to any Holder has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means the Trustee or other Person designated by the
Company from time to time, on written notice to the Trustee, to authenticate
and deliver Securities of one or more Series pursuant to Section 303.
"Authorizing Resolution" means a Board Resolution providing for the
issuance of a Series of Securities, which is to be delivered to the Trustee
pursuant to Section 303 hereof.
"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 Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the city in which the
Corporate Trust Office is located are authorized or obligated by law or
executive order to be closed.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman or Vice
Chairman of the Board, the President, a Vice President (any reference to a Vice
President of the Company herein to be deemed also to include any Vice President
of the Company designated by a number or a word or words added before or after
such title) or the Treasurer of the Company, and also by an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary, and delivered to the Trustee and to the Authenticating
Agent, if any, in respect of the Series to which the Company Order shall
relate.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Indenture is
located at 450 West 33rd Street, New York, New York 10001, Attention:
Corporate Trust Department, 15th Floor.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to any Securities of any Series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have
Exhibit 4.1 - Page 2
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary", as used with respect to the Securities of any such Series, shall
mean or include the Depositary with respect to the Global Securities of that
Series.
"Extendible Securities" means Securities of any Series issued hereunder
the final maturity of which is extendible for a stated period of time, as shall
be provided in, or pursuant to, the Authorizing Resolution and supplemental
indenture (if any) relating to such Series.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all indebtedness for money borrowed, including
purchase money indebtedness, having a maturity of more than twelve months from
the date as of which the amount thereof is to be determined or having a
maturity of less than twelve months but by its terms being renewable or
extendible beyond twelve months from such date at the option of the borrower,
subject only to conditions which the borrower is then capable of fulfilling,
and direct guarantees of such indebtedness for money borrowed of other Persons;
provided, that Funded Debt shall not include:
(i) Any indebtedness of a Person, evidence of which is held in
treasury by such Person; or
(ii) Any indebtedness with respect to which there shall have
been deposited with a depository (or set aside and segregated by the
obligor if permitted by the instrument creating such indebtedness),
in trust, on or prior to maturity, funds sufficient to pay such
indebtedness; or
(iii) Any amount representing capitalized lease obligations;
or
(iv) Any indirect guarantees or other contingent obligations in
respect of indebtedness of other Persons, including agreements,
contingent or otherwise, with such other Persons or with third
persons with respect to, or to permit or assure the payment of,
obligations of such other Persons, including, without limitation,
agreements to purchase or repurchase obligations of such other
Persons, agreements to advance or supply funds to or to invest in
such other Persons, or agreements to pay for property, products or
services of such other Persons (whether or not conveyed, delivered or
rendered), and any through-put, take-or-pay, keep-well, make-whole or
maintenance of working capital or earnings or similar agreements; or
(v) Any guarantees with respect to lease or other similar
periodic payments to be made by other Persons.
"Global Security" means a registered Security evidencing all or part of a
Series of Securities, issued to the Depositary for such Series in accordance
with Section 303, and bearing the legend prescribed in Section 303.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the forms and terms of particular Series of Securities established as
contemplated hereunder.
"Interest" means, when used with respect to non-interest-bearing
Securities, interest payable after Maturity.
Exhibit 4.1 - Page 3
"Interest Payment Date" means, for any Series or Issue of Securities
issued and outstanding hereunder, the date or dates in each year on which any
interest on such Series is paid or made available for payment.
"Issue" means, with respect to any Series, Securities of such Series
having the same Original Issue Date, the same Maturity Date and the same
interest rate and other payment terms, except as to amount of principal.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Maturity Date" means the date specified in each Security on which the
principal thereof is due and payable in full.
"Net Tangible Assets" means the total assets of the Company and its
Restricted Subsidiaries (including, without limitation, any net investment in
Unrestricted Subsidiaries) after deducting therefrom (a) all current
liabilities (excluding any thereof constituting Funded Debt by reason of being
renewable or extendible) and (b) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense, organization and developmental
expenses and other like segregated intangibles, all as computed by the Company
and its Restricted Subsidiaries in accordance with generally accepted
accounting principles as of a date within 90 days of the date as of which the
determination is being made; provided, that any items constituting deferred
income taxes, deferred investment tax credit or other similar items shall not
be taken into account as a liability or as a deduction from or adjustment to
total assets.
"Officers' Certificate" means a certificate signed by the Chairman or Vice
Chairman of the Board, or the President, a Vice President (any reference to a
Vice President of the Company to be deemed also to include any Vice President
of the Company designated by a number or a word or words added before or after
such title) or the Treasurer of the Company, and also by an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means an opinion in writing signed by legal counsel,
who may be an employee of or of counsel to the Company or other counsel, and
who shall be acceptable to the Trustee. Each such opinion shall include the
statements provided for in Section 102, if and to the extent required by the
provisions thereof.
"Original Issue Date" means the date on which a Security is issued to the
original purchaser thereof, as specified in such Security.
"Original Issue Discount Securities" means Securities which provide for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 502.
"Outstanding" when used with respect to Securities, or Securities of any
particular Series or Issue, means, as of the date of determination, all such
Securities theretofore authenticated and delivered under this Indenture,
except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities, provided that,
if such Securities are to be redeemed, notice of such redemption has
been duly given
Exhibit 4.1 - Page 4
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount that would be due and payable
as of the date of determination upon a declaration of acceleration thereof
pursuant to Section 502 and (b) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor.
"Paying Agent" means, with respect to any Series of Securities, any Person
authorized by the Company to pay the principal of (and premium, if any) or
interest on any such Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost,
destroyed or stolen Security.
"Principal Plant" means any brewery, or any manufacturing, processing or
packaging plant, now owned or hereafter acquired by the Company or any
Subsidiary, but shall not include any (a) brewery or any manufacturing,
processing or packaging plant of the Company or any Subsidiary which the
Company shall by Board Resolution have determined is not of material importance
to the total business conducted by the Company and its Subsidiaries or (b) any
plant which the Company shall by Board Resolution have determined is used
primarily for transportation, marketing or warehousing, any such determination
to be effective upon the date specified in the applicable Board Resolution.
"Redeemable Securities" means Securities of any Series or Issue which may
be redeemed, at the option of the Company, prior to the Stated Maturity
thereof, on the terms specified in or pursuant to the Authorizing Resolution
relating to such Series or Issue and in accordance with Article Eleven herein.
"Redemption Date" when used with respect to any Security of any Series or
Issue to be redeemed means the date fixed for such redemption by or pursuant to
the provisions of such Security, this Indenture and the Authorizing Resolution
and supplemental indenture (if any) relating to such Security.
"Redemption Price" when used with respect to any Security of any Series or
Issue to be redeemed means the price at which it is to be redeemed pursuant to
the provisions of such
Exhibit 4.1 - Page 5
Security, this Indenture and the Authorizing Resolution and supplemental
indenture (if any) relating to such Security.
"Regular Record Date" means, for the interest payable on any Interest
Payment Date in respect of any Series or Issue of Securities, except as
provided in, or pursuant to, the Authorizing Resolution and supplemental
indenture (if any) relating thereto, the fifteenth day (whether or not a
Business Day) of the calendar month next preceding the month during which such
Interest Payment Date occurs.
"Responsible Officer" when used with respect to the Trustee or an
Authenticating Agent means the Chairman or Vice Chairman of the Board of
Directors, the Chairman or Vice Chairman of the Executive Committee of the
Board of Directors, the President, any Vice President (whether or not
designated by a number or a word or words added before or after the title "Vice
President"), the Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer, the Cashier, any Assistant Cashier, any Senior Trust
Officer or Trust Officer, the Controller and any Assistant Controller or any
other officer of the Trustee or such Authenticating Agent customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means (i) any Subsidiary which owns or operates a
Principal Plant, except any Subsidiary incorporated, or the principal place of
business of which is located, outside the present fifty states of the United
States of America and the District of Columbia and (ii) any other Subsidiary
which the Company, by Board Resolution, shall elect to be treated as a
Restricted Subsidiary, until such time as the Company may, by further Board
Resolution, elect that such Subsidiary shall no longer be a Restricted
Subsidiary, successive such elections being permitted without restriction. Any
such election shall be effective as of the date specified in the applicable
Board Resolution.
"Securities" means the securities of the Company to be issued from time to
time hereunder.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Series" means, with respect to Securities issued hereunder, the
Securities issued pursuant to any particular Authorizing Resolution, subject to
the right of the Board of Directors to specify in such Authorizing Resolution
that such Securities shall constitute more than one Series.
"Sinking Fund" means, with respect to any Sinking Fund Securities, a
sinking fund provided for in Article Twelve.
"Sinking Fund Securities" means Securities of any Series or Issue which
are required to be redeemed from time to time prior to the Stated Maturity
thereof in whole or in part under a Sinking Fund, on the terms specified in the
Authorizing Resolution relating to such Series or Issue and in accordance with
Article Twelve herein.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means any corporation of which more than 50% of the issued
and outstanding stock entitled to vote for the election of directors (otherwise
than by reason of default in
Exhibit 4.1 - Page 6
dividends or other contingency) is at the time owned directly or indirectly by
the Company or a Subsidiary or Subsidiaries or by the Company and a Subsidiary
or Subsidiaries.
"Supplemental Agreement" means an agreement substantially in the form
attached hereto as Exhibit A, which is to be executed by ABI and the Company
and delivered to the Trustee pursuant to Section 303(3) in connection with the
issuance of each Series of Securities (unless the Company otherwise elects as
referred to in said Section), pursuant to which ABI shall be jointly and
severally liable with the Company for payment of the principal of, and premium,
if any, and interest on such Securities, subject to certain limitations and
subject to the right of the Company to terminate such liability of ABI as
provided in such form of Supplemental Agreement.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean and include the Person, or each Person, who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any Series shall mean the Trustee with respect to
Securities of that Series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this instrument was executed,
except as provided in Section 905.
"Unrestricted Subsidiary" means any Subsidiary which is not a Restricted
Subsidiary.
"Yield to Maturity" means, with respect to any Series or Issue of
Securities, the yield to maturity thereof, calculated at the time of issuance
thereof, or, if applicable, at the most recent redetermination of interest
thereon, and calculated in accordance with accepted financial practice.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than certificates provided
pursuant to Section 1004) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Exhibit 4.1 - Page 7
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company, stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver, vote or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee, and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee
may determine.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind the Holder of
every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done or suffered to be done
by the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(e) The record date for determining which Holders may act hereunder is
the later of the 30th day prior to the first solicitation of Holders relating
to such act or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 701 prior to such first solicitation, provided,
that so long as the Trustee is the Security Registrar, such record date shall
be the 30th day prior to such first solicitation.
Exhibit 4.1 - Page 8
Section 105. Notices, etc., to Trustee and Company.
Except as provided in Section 501, any request, demand, authorization,
direction, notice, consent, or waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust
Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (except as provided in Section
501 (4)), if in writing and mailed, first class postage prepaid, to
the Company, to the attention of the Secretary, and a copy thereof to
the attention of the Treasurer, addressed to it at the address of the
principal office of the Company specified in the first paragraph of
this instrument or at such other address as shall have been furnished
in writing to the Trustee by the Company for this purpose.
Section 106. Notices to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears on the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision which is required or deemed to be included in this Indenture by any
of the provisions of TIA, such provision so required or deemed to be included
herein shall control.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Exhibit 4.1 - Page 9
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto, any Paying Agent and their
successors hereunder and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture shall be construed in accordance with and governed by the
laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, any Redemption Date, or the
Stated Maturity of any Security, or any date on which any Defaulted Interest is
proposed to be paid, shall not be a Business Day, then (notwithstanding any
other provision of this Indenture) payment of interest or principal (and
premium, if any) need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or Redemption Date, at the Stated Maturity, or on the
date on which the Defaulted Interest is proposed to be paid, and no interest
shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity or date for the payment of Defaulted
Interest, as the case may be.
Section 114. Act of Holders when Securities are Denominated in Different
Currencies.
Whenever any action or Act is to be taken hereunder by the Holders of two
or more Series or Issues of Securities denominated in different currencies,
then, for the purposes of determining the principal amount of Securities held
by such Holders, the aggregate principal amount of the Securities denominated
in a currency other than United States dollars shall be deemed to be that
amount of United States dollars that could be obtained for such principal
amount on the basis of the spot rate of exchange for such currency as
determined by the Company or by an authorized exchange rate agent and evidenced
to the Trustee by an Officers' Certificate as of the date the taking of such
action or Act by the Holders of the requisite percentage in principal amount of
the Securities is evidenced to the Trustee. An exchange rate agent may be
authorized in advance or from time to time by the Company, and may be the
Trustee or its Affiliate. Any such determination by the Company or by any such
exchange rate agent shall be conclusive and binding on all Holders and the
Trustee, and neither the Company nor such exchange rate agent shall be liable
therefor in the absence of bad faith.
Section 115. Monies of Different Currencies to be Segregated.
The Trustee shall segregate monies, funds, and accounts held by the
Trustee hereunder in one currency from any monies, funds or accounts in any
other currencies, notwithstanding any provision herein which would otherwise
permit the Trustee to commingle such amounts.
Exhibit 4.1 - Page 10
Section 116. Payment to be in Proper Currency.
Each reference in any Security, or in the Authorizing Resolution relating
thereto, to any currency shall be of the essence. In the case of any Security
denominated in any currency (the "Required Currency") other than United States
dollars, except as otherwise provided therein or in the related Authorizing
Resolution, the obligation of the Company to make any payment of principal,
premium or interest thereon shall not be discharged or satisfied by any tender
by the Company, or recovery by the Trustee, in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the Trustee timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is in a currency other
than the Required Currency, the Trustee may take such actions as it considers
appropriate to exchange such currency for the Required Currency. The costs and
risks of any such exchange, including without limitation the risks of delay and
exchange rate fluctuation, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in the full amount of
Required Currency then due and payable, and in no circumstances shall the
Trustee be liable therefor. The Company hereby waives any defense of payment
based upon any such tender or recovery which is not in the Required Currency,
or which, when exchanged for the Required Currency by the Trustee, is less than
the full amount of Required Currency then due and payable.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each Series and Issue and the certificate of
authentication thereon shall be in substantially the forms set forth in this
Article or in such other forms, including the form of one or more Global
Securities, as shall be specified in, or pursuant to, the Authorizing
Resolution or in the indenture supplemental hereto (if any) relating to such
Series or Issue, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture or the said
Authorizing Resolution or supplemental indenture, and they may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange, or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The definitive Securities of each Series shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, or, if they shall
not be listed on any securities exchange, in any other manner consistent
herewith, all as shall be determined by the officers executing such Securities,
as evidenced by their execution of such Securities.
Exhibit 4.1 - Page 11
Section 202. Form of Face of Security.
[The following is to be included if the Security is an Original Issue
Discount Security:]
[FOR PURPOSES OF SECTION 1273 OF THE UNITED STATES INTERNAL
REVENUE CODE OF 1986, AS AMENDED, THE ISSUE PRICE OF THIS SECURITY IS
% OF ITS PRINCIPAL AMOUNT AND ITS ISSUE DATE IS ,
19 .]
ANHEUSER-BUSCH COMPANIES, INC.
[title of Security]
Rate of Interest Maturity Date Original Issue Date
..................... No.....................
Anheuser-Busch Companies, Inc., a Delaware corporation
(hereinafter called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to , or
registered assigns, the sum of on the Maturity Date shown
above, and to pay interest thereon, at the annual rate of interest
shown above, from the Original Issue Date shown above or from the
most recent Interest Payment Date (as hereinafter defined) to which
interest has been paid or duly provided for, payable semi-annually on
and of each year and at maturity (an
"Interest Payment Date"), commencing on the first such date after the
Original Issue Date, except that if the Original Issue Date is on or
after a Regular Record Date (which term, as well as all other
capitalized terms used herein, shall have the meanings assigned in
the Indenture referred to on the reverse hereof unless otherwise
indicated) but before the next Interest Payment Date, interest
payments will commence on the second Interest Payment Date following
the Original Issue Date.
[reference to currency[ies] of payment and currency exchange
arrangements, if applicable]
The interest payable hereon, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in said
Indenture, be paid to the Person in whose name this [name of
Security] (or one or more Predecessor [name of Series]) is registered
at the close of business on the Regular Record Date for such
interest, which shall be the fifteenth day of the calendar month
(whether or not a Business Day) next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holder on such
Regular Record Date, and may be paid to the Person in whose name this
[name of Security] (or one or more Predecessor [name of Series]) is
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of [name of Series] not less than
10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the [name of Series] may be listed,
and upon such notice as may be required by such exchange, all as more
fully provided in such Indenture. Payment of the principal of (and
premium, if any) and interest on this [name of Security] will be made
at the office or agency of the Company maintained for that purpose in
[The Borough of Manhattan, The City of New York or other place of
payment], in
Exhibit 4.1 - Page 12
[reference to United States dollars or other currency of payment];
provided, however, that payment of interest, other than interest due on a
Maturity Date, may be made at the option of the Company by check mailed to
the address of the Person entitled thereto as such address shall appear on
the Security Register. [Include the following, if applicable:] Payments on
the Maturity Date will be made in immediately available funds against
presentment of this [name of Security].
[The following paragraph to be included if a Supplemental
Agreement is delivered pursuant to Section 303]
Anheuser-Busch, Incorporated ("ABI"), a Missouri corporation
which is a wholly-owned subsidiary of the Company, pursuant to a
Supplemental Agreement relating to the [name of Series], is jointly
and severally liable with the Company for payment of the principal
of, premium, if any, and interest on the [name of Series] when and as
the same shall become due and payable, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise,
according to the terms of the [name of Series] and of the Indenture,
but subject to the limitations set forth in such Supplemental
Agreement, which permits the Company to elect to terminate such
liability of ABI on the terms provided therein.
Reference is hereby made to the further provisions of this [name
of Security] set forth on the reverse hereof which further provisions
shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon has been
executed by Chemical Bank, the Trustee under the Indenture, or its
successor thereunder, or by another Authenticating Agent appointed
pursuant to the Indenture, by the manual signature of one of its
authorized officers, this [name of Security] shall not be entitled to
any benefit under the Indenture, nor be valid or obligatory for any
purpose.
In Witness Whereof, The Company has caused this instrument to be
duly executed under its corporate seal.
Dated ___________________
Anheuser-Busch Companies, Inc.
By _______________________________
[title of Company Officer]
Attest:
________________________________
[Assistant] Secretary
Exhibit 4.1 - Page 13
Section 203. Form of Trustee's Certificate of Authentication.
This is one of the [name of Series] referred to in the within-
mentioned Indenture.
Chemical Bank,
as Trustee
[reference to Authenticating Agent, if any]
By _____________________________________
Authorized Officer
Section 204. Form of Reverse of Security.
This [name of Security] is one of a duly authorized issue of
[name of Securities] of the Company designated as its [title of
Series] (herein called the "[name of Series]"), issued and to be
issued under an indenture dated as of , 199_ (herein
called the "Indenture"), between the Company and Chemical Bank, as
Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), and under [reference to
Authorizing Resolution and/or supplemental indenture relating to the
Series] to which Indenture, [reference to Authorizing Resolution
and/or supplemental indenture] and all [further] indentures
supplemental thereto reference is hereby made for the definition of
certain terms used herein, for a statement of the respective rights
thereunder of the Company, the Trustee and the Holders of the [name
of Series], and for the terms upon which the [name of Series] are,
and are to be, authenticated and delivered. This [name of Series] is
one of a series of securities issued or to be issued by the Company
under the Indenture, limited in aggregate principal amount to
. The Indenture provides that the Securities of the Company
referred to therein ("Securities"), including the [name of Series],
may be issued in one or more Series, each of which may consist of one
or more Issues, which different Series and Issues may be issued in
such principal amounts and on such terms (including, but not limited
to, terms relating to interest rate or rates, provisions for
determining such interest rate or rates and adjustments thereto,
maturity, redemption (optional and mandatory), sinking fund,
covenants and Events of Default) as may be provided in or pursuant to
the Authorizing Resolutions (as defined in the Indenture) relating to
the several Series.
[The following to be included if the Securities are not
redeemable prior to maturity.]
This [name of Security] may not be redeemed prior to its
Maturity Date.
[The following paragraph, or other appropriate redemption
provisions, to be included if the Securities are Redeemable
Securities:]
The [name of Series] are subject to redemption upon not less
than 30 nor more than 60 days' notice by mail, [the following clause
to be included if there is a Sinking Fund:] [(1) on [annual Sinking
Fund Redemption Date] in each year commencing with the year [year of
first Sinking Fund payment] through operation of the Sinking Fund at
a Redemption Price equal to their principal amount and (2)] [at any
time] in whole or in part, at the election of the Company at a
Redemption Price equal to the
Exhibit 4.1 - Page 14
percentage set forth below of the principal amount to be redeemed for
the respective twelve-month periods beginning [
] of the years indicated:
[Schedule of Redemption Prices]
and thereafter at 100% of the principal amount thereof, together in
each case with accrued interest to the Redemption Date.
[The following paragraph, or other appropriate Sinking Fund
provision, to be included if there is a Sinking Fund for the Series:]
The Sinking Fund provides for the redemption on [first Sinking
Fund Redemption Date] and on [annual Sinking Fund Redemption Date] in
each year thereafter through [year of final Sinking Fund date] of not
less than [minimum required Sinking Fund redemption amount] principal
amount nor more than [maximum permitted Sinking Fund redemption
amount] principal amount of [name of Series]. [name of Series]
purchased, acquired or redeemed by the Company otherwise than by
redemption through the Sinking Fund may be credited against
subsequent Sinking Fund requirements.
[The following paragraph to be included if the Securities are
Redeemable Securities or Sinking Fund Securities:]
In the event of redemption of this [name of Security] in part
only, a new [name of Security] or [name of Series] for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon
the surrender hereof.
[The following paragraph to be included if the Securities are
not Original Issue Discount Securities:]
If an Event of Default, as defined in the Indenture and in the
Authorizing Resolution and supplemental indenture (if any) relating
to the [name of Series] (if there shall be any additional Events of
Default specified in respect of the [name of Series]), shall occur
and be continuing, the principal of all the [name of Series] may be
declared due and payable in the manner and with the effect provided
in the Indenture.
[If the Securities are Original Issue Discount Securities,
insert schedule as to amounts which are payable on acceleration under
Section 502 and provable in bankruptcy under Section 504(i) from time
to time.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Company and the rights of the Holders of the
[name of Series] under the Indenture at any time by the Company with
the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities affected thereby, voting as a
single class (which may include the [name of Series]), at the time
Outstanding, as defined in the Indenture. The Indenture also
contains provisions permitting the Holders of not less than a
majority in principal amount of the Securities at the time
Outstanding of all Series affected thereby to waive certain past
defaults under the Indenture and their consequences, and permitting
the Holders of not less than a majority in principal amount of the
Securities at the time Outstanding of all Series entitled to the
benefits thereof to waive compliance with certain covenants under the
Indenture. Any such
Exhibit 4.1 - Page 15
consent or waiver by the Holder of this [name of Security] shall be
conclusive and binding upon such Holder and upon all future Holders of
this [name of Security] and of any [name of Security] issued on transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such consent or waiver is made upon this [name of Security].
No reference herein to the Indenture and no provision of this
[name of Security] or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to
pay the principal of (and premium, if any) and interest on this [name
of Security] at the times, place, and rate, and in the currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this [name of Security] is
registrable on the Security Register of the Company, upon surrender
of this [name of Security] for registration of transfer at the office
or agency of the Company provided for that purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed
by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new [name of Series], of authorized
denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The [name of Series] are issuable only as registered [name of
Series] without coupons in denominations of [currency and minimum
denomination] and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, [name
of Series] are exchangeable for a like aggregate principal amount of
[name of Series] of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment for registration of transfer of this
[name of Security], the Company, the Trustee and any agent of the
Company may treat the Person in whose name this [name of Security] is
registered as the owner hereof for all purposes whether or not this
[name of Security] be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
[Reference to Foreign Currencies]
At the election of the Company, the obligations of the Company
(a) as to the [name of Series] and under the Indenture with respect
to the [name of Series] (except for certain obligations relating to
transfers or exchanges) or (b) as to the [name of Series] under
certain provisions of the Indenture, may be satisfied and discharged
upon the satisfaction of certain conditions, including the deposit
with the Trustee of money or U.S. Government Obligations (as defined
in the Indenture) sufficient for payment of the principal, premium,
if any, and interest at or before the Stated Maturity (as defined in
the Indenture) on the [name of Series].
As provided in the Indenture and subject to certain limitations
therein set forth, the holder of this [name of Security] shall not
have the right to institute any proceeding with respect to the
Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default
with respect to the
Exhibit 4.1 - Page 16
[name of Series], the Holders of not less than 25% in principal amount of
the Outstanding Securities of the Series or Issue in respect of which the
Event of Default has occurred shall have made written request to the
Trustee to institute proceedings, as Trustee, in respect of such Event of
Default and shall have offered the Trustee reasonable indemnity and the
Trustee shall not have received from the Holders of a majority in
principal amount of the Outstanding Securities of such Series or Issue a
direction inconsistent with such request, and the Trustee shall have
failed to institute any such proceeding for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to
any suit instituted by the Holder of this [name of Security] for the
enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this [name of Security], or for
any claim based hereon, or otherwise in respect hereof, or based on
or in respect of the Indenture or any indenture supplemental thereto,
against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
ARTICLE THREE
The Securities
Section 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more Series and Issues. The terms
of each Series and Issue shall be as provided in an Authorizing Resolution or
supplemental indenture or shall be determined in the manner specified therein.
The terms to be specified in respect of each Series or Issue in the Authorizing
Resolution or supplemental indenture, or by such person and/or procedures as
shall be provided therein, shall include the following:
(1) The title of the Securities of such Series, which shall
distinguish such Series from all other Series;
(2) The aggregate principal amount of the Securities of such
Series which may be authenticated and delivered under this Indenture
(except for Securities of such Series authenticated and delivered
upon transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 304, 305, 306, 906 or 1108);
(3) The date or dates on which the principal and premium, if
any, of the Securities of such Series or Issue is payable, and, if
the Series shall be Extendible Securities, the terms on which the
Company or any other Person shall have the option to extend the
Maturity of such Securities and the rights, if any, of the Holders to
require payment of the Securities;
(4) The rate or rates at which the Securities of such Series or
Issue shall bear interest, if any (whether floating or fixed), the
provisions, if any, for determining such interest rate or rates and
adjustments thereto, the date or dates from which such interest shall
accrue, the Interest Payment Dates therefor and the Regular Record
Dates (if different
Exhibit 4.1 - Page 17
from those provided in the form of Security herein set forth) for the
determination of Holders of the Securities of such Series or Issue to whom
interest is payable;
(5) The place or places where the principal of, or premium, if
any, and interest on Securities of such Series or Issue shall be
payable (if other than as provided in Section 1002);
(6) The price or prices at which, the period or periods within
which and the terms and conditions upon which the Securities of such
Series or Issue may be redeemed, in whole or in part, at the option
of the Company, pursuant to a Sinking Fund or otherwise;
(7) The obligation, if any, of the Company to redeem, purchase
or repay Securities of such Series or Issue, in whole or in part,
pursuant to a Sinking Fund or otherwise or at the option of a Holder
thereof, and the price or prices at which, the period or periods
within which and the terms and conditions upon which such redemption,
purchase or repayment shall be made;
(8) Any Events of Default with respect to the Securities of
such Series or Issue which may be in addition to those provided
herein, and any covenants or obligations of the Company to the
Holders of the Securities of such Series or Issue in addition to
those set forth herein;
(9) If less than 100% of the principal amount of the Securities
of such Series or Issue is payable on acceleration under Section 502
or provable in bankruptcy under Section 504(i) at any time, a
schedule of or the manner of computing the amounts which are so
payable and provable from time to time;
(10) The form of the Securities of such Series (which may be,
but which need not be, consistent with the form set forth in Article
Two hereof), including whether the Securities of the Series shall be
issued in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such
Global Security or Securities;
(11) If other than United States dollars, the currency(ies) in
which payment of the principal of (and premium, if any) or interest,
if any, on the Securities of that Series or Issue shall be payable;
(12) If the principal of (and premium, if any) or interest, if
any, on the Securities of that Series or Issue are to be payable, at
the election of the Company or a Holder thereof, in a currency or
currencies other than that in which the Securities are stated to be
payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(13) If the amount of payments of principal of (and premium, if
any) or interest, if any, on the Securities of the Series or Issue
may be determined with reference to an index based on a currency or
currencies other than that in which the Securities are stated to be
payable, the manner in which such amounts shall be determined; and
(14) Any other terms of the Securities of such Series or Issue;
provided, that such other terms shall not be inconsistent with any
express terms of this Indenture or in conflict with any express terms
of any other Series or Issue of Securities which shall be issued and
Outstanding.
All Securities of any one Series or Issue shall be substantially identical
in form except as to denomination and except as may be otherwise provided in
and pursuant to the Authorizing Resolutions or supplemental indenture (if any)
relating thereto.
Exhibit 4.1 - Page 18
Section 302. Denominations.
Unless otherwise provided by Section 301 in connection with the issuance
of Global Securities, the Securities of each Series or Issue may be issued only
in registered form without coupons in denominations of $1,000 and any integral
multiple thereof, or in such other currencies or denominations as may be
specified in, or pursuant to, the Authorizing Resolution relating to the
Series.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
or Vice Chairman of the Board, its President, one of its Vice Presidents or its
Treasurer under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any Series executed by the
Company to the Authenticating Agent, together with a Company Order for the
authentication and delivery of such Securities. The Company Order may provide
that the Securities which are the subject thereof shall be authenticated and
delivered by the Authenticating Agent upon the telephonic, written or other
order of Persons designated in the Company Order, and that such Persons are
authorized to specify the terms and conditions of such Securities, to the
extent permitted by the Authorizing Resolution relating thereto. The Trustee
shall execute and deliver the supplemental indenture (if any) and the
Supplemental Agreement (if any) relating to said Securities and the
Authenticating Agent shall authenticate and deliver said Securities as
specified in such Company Order; provided, that, prior to authentication and
delivery of the first Securities of any Series, the Trustee and the
Authenticating Agent shall have received:
(1) A copy of the Authorizing Resolution, with a copy of the
form of Security approved thereby attached thereto;
(2) A supplemental indenture in respect of the issuance of the
Series, if called for by the terms of the Authorizing Resolution in
respect thereof, executed on behalf of the Company;
(3) A Supplemental Agreement relating to the Series, executed
on behalf of ABI and the Company, unless the Company shall
theretofore have elected, pursuant to the terms specified in the form
of Supplemental Agreement, to terminate the obligations of ABI in
respect of the Securities;
(4) An Officers' Certificate to the effect that the Securities
of such Series comply or will comply with the requirements of this
Indenture and the said Authorizing Resolution and supplemental
indenture (if any);
(5) An Opinion of Counsel (a) to the effect that (i) the
Securities of such Series, the Authorizing Resolution, the
Supplemental Agreement (if any) and the supplemental indenture (if
any) relating thereto comply or will comply with the requirements of
this Indenture, (ii) the Securities of such Series, when
authenticated and delivered by the Authenticating Agent in accordance
with the said Company Order, will constitute valid and binding
obligations of the Company and (if applicable) ABI enforceable in
accordance with their terms, subject to (A) bankruptcy and other laws
affecting creditors'
Exhibit 4.1 - Page 19
rights generally as in effect from time to time, (B) limitations of
generally applicable equitable principles, (C) any limitations or
uncertainty, under the constitution and laws of the State of
Missouri, on the enforceability of the obligations of ABI (if any) in
respect of the Securities and (D) other exceptions acceptable to the
Trustee and its counsel; and (b) relating to such other matters as
may reasonably be requested by the Trustee or its counsel.
(6) If the Securities to be issued are Original Issue Discount
Securities, an Officers' Certificate setting forth the Yield to
Maturity for the Securities or other information sufficient to
compute amounts due on acceleration, or specifying the manner in
which such amounts are to be determined, provided that such Yield to
Maturity and other facts are not specified in the form of the
Securities.
If the Company shall establish pursuant to Section 301 that the Securities
of a Series are to be issued in whole or in part in the form of one or more
Global Securities, then the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to such Series,
authenticate and deliver one or more Global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an
aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such Series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the Depositary for such Global Security
of Securities or the nominee of such Depositary, (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instruction and
(iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary."
Each Depositary designated pursuant to Section 301 for a Global Security
in registered form must, at the time of its designation and at all times while
it serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation.
Subject to Section 601 hereof, the Authenticating Agent and the Trustee
shall be fully protected in relying upon the documents delivered to it as
provided above in connection with the issuance of any Series of Securities.
The Authenticating Agent shall have the right to decline to authenticate
and deliver any Securities under this Section if the Authenticating Agent,
being advised by counsel, determines that such action may not lawfully be taken
or if the Authenticating Agent in good faith by a committee of its Responsible
Officers shall determine that such action would expose the Authenticating Agent
to liability to Holders of previously issued and Outstanding Securities.
Each Security shall be dated the date of its authentication unless
otherwise specified in the Authorizing Resolution relating thereto.
No Security shall be entitled to any benefit under this Indenture, or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Authenticating Agent by the manual signature of one of its
authorized signatories, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
Exhibit 4.1 - Page 20
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any Series or Issue,
the Company may execute, and upon compliance with the requirements of Section
303 the Authenticating Agent shall authenticate and deliver, temporary
Securities, which may be printed, lithographed, typewritten, photocopied or
otherwise produced, in any denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of such Securities.
If temporary Securities of any Series or Issue are issued, the Company
shall thereafter cause definitive Securities for such Series or Issue to be
prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities, at the office or agency
of the Company provided for that purpose, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities the Company
shall execute and the Authenticating Agent shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged, the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept a register at one of its offices or
agencies maintained pursuant to Section 1002 (herein referred to as the
"Security Register") in which, subject to such reasonable regulations as the
Company may prescribe, the Company shall provide for the registration of
Securities and the registration of transfers of Securities. At all reasonable
times the Security Register shall be open for inspection by the Trustee. The
Security Register shall be kept at the said office or agency, and said office
or agency is hereby initially appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided. If the
Security Registrar shall not be the Authenticating Agent in respect of any
Series, the Company shall promptly notify the Security Registrar as to the
amounts and terms of each Security of such Series which shall be authenticated
and delivered hereunder, and as to the names in which such Securities shall be
registered.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company provided for that purpose, the Company shall execute,
and the Authenticating Agent shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
Issue and Stated Maturity of a like aggregate principal amount.
Notwithstanding any other provision of this Section, unless and until it
is exchanged in whole or in part for Securities in definitive form, a Global
Security representing all or a portion of the Securities of a Series may not be
transferred except as a whole by the Depositary for such Series or to a nominee
of such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any such nominee to
a successor Depositary for such Series or a nominee of such successor
Depositary.
At the option of the Holder, Securities of any Issue (other than a Global
Security, except as set forth below) may be exchanged for other Securities of
the same Issue of any authorized denominations, of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Authenticating Agent shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Exhibit 4.1 - Page 21
If at any time the Depositary for any Securities of a Series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such Series or if at any time the Depositary for the Securities
of such Series shall no longer be eligible under Section 303, the Company shall
appoint a successor Depositary eligible under Section 303, with respect to the
Securities of such Series. If a successor Depositary eligible under Section
303 for the Securities of such Series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section 301(10) that the
Securities of such Series be represented by one or more Global Securities shall
no longer be effective with respect to the Securities of such Series and the
Company shall execute and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such Series, shall
authenticate and deliver, Securities of such Series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any Series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company shall execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
Series, shall authenticate and deliver, Securities of such Series in definitive
form and in an aggregate principal amount equal to the principal amount of the
Global Security or Securities representing such Series in exchange for such
Global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
Series of Securities represented by a Global Security, the Depositary for such
Global Securities may surrender a Global Security for such Series of Securities
in exchange in whole or in part for Securities of such Series in definitive
form on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and
deliver, without service charge:
(i) to each Person specified by such Depositary a new Security or
Securities of the same Series, of any authorized denomination as requested
by such Person in aggregate principal amount equal to and in exchange for
such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered
pursuant to clause (i) above.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee will authenticate and deliver Securities
in definitive registered form in authorized denominations.
Upon the exchange of a Global Security for Securities in definitive
registered form, such Global Security shall be cancelled by the Trustee or an
agent of the Company or the Trustee. The Trustee or such agent shall deliver
such Securities to or as directed by the Persons in whose names such Securities
are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written
Exhibit 4.1 - Page 22
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1108 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Security of any Series during a period beginning at the opening
of the day which is 15 Business Days before the day of the mailing of a notice
of redemption of Securities of such Series selected for redemption under
Section 1104 and ending at the close of business on the day of such mailing, or
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not to be redeemed.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and (ii) there is delivered to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Authenticating Agent shall
authenticate and deliver, in exchange for, or in lieu of, any such mutilated,
destroyed, lost or stolen Security, a new Security of like tenor, Issue and
principal amount, bearing a number not assigned to any Security of the same
Series then outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay the indebtedness represented by such
Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of the same Issue duly issued hereunder.
The provisions of this Section are exclusive and (to the extent lawful)
shall preclude all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Interest which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date, on the Securities of any Issue, shall be paid to the
Persons in whose names the Securities (or one or more Predecessor Securities)
are registered at the close of business on the Regular Record Date for such
interest.
Exhibit 4.1 - Page 23
Any interest on any Security of any Issue which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder,
as such, on the Regular Record Date for such payment; and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such Issue and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount of such Defaulted Interest proposed to be paid or shall make
arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such
Issue at his address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the said
Securities (or their respective Predecessor Securities) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of such Series may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment for registration of transfer of any Security, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any), and
(subject to Section 307) interest on, such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Exhibit 4.1 - Page 24
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee. All Securities so delivered and any
Securities surrendered directly to the Trustee for any such purpose shall be
promptly cancelled by the Trustee and all Securities of any Series or Issue
delivered to the Trustee for credit against any Sinking Fund payment in respect
of such Series or Issue pursuant to Section 1202 shall be promptly cancelled by
the Trustee. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be destroyed and
certification of their destruction delivered to the Company unless by a Company
Order the Company shall direct that cancelled Securities be returned to it.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for, and except as otherwise provided in the Authorizing
Resolution in respect of any Series), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements satisfactory
to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the
expense, of the Company,
Exhibit 4.1 - Page 25
and the Company, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
(3) the Company has delivered to the Trustee a Company Order
setting forth its election that this Indenture shall be discharged;
and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 shall survive.
Section 402. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for payment of which such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default" wherever used herein means, with respect to any Issue
of Securities, any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body), unless it is either inapplicable to a particular Series or
Issue or it is specifically deleted or modified in the Authorizing Resolution
and/or supplemental indenture (if any) in respect of the Series or Issue, and
any other events which may be specified as Events of Default in the Authorizing
Resolution and/or supplemental indenture (if any) in respect of such Series or
Issue:
(1) default in the payment of any installment of interest upon
any Security of such Issue when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of such Issue at its Maturity, and, in the case
of such a Security that becomes due and payable by the terms of
Article Eleven, continuance of such default for a period of 30 days;
or
Exhibit 4.1 - Page 26
(3) default in the deposit of any Sinking Fund installment in
respect of such Issue, when and as payable by the terms of Section
1201 hereof, and continuance of such default for a period of 30 days;
or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than (a) a covenant
or warranty relating exclusively to another Issue of Securities
issued hereunder and (b) a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Securities of all Issues
Outstanding (or, with respect to any such covenant or agreement which
is not applicable to all Issues of Securities, by the Holders of at
least 25% in aggregate principal amount of the Outstanding Securities
of all Issues to which it is applicable) (in each case voting as a
single class), a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(5) the entry of an order for relief under the United States
federal bankruptcy laws or the entry of any other decree or order by
a court having jurisdiction in the premises adjudging the Company or
ABI a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or ABI under the United
States federal bankruptcy laws or any other applicable federal or
state law, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of the Company or
ABI or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any
such decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company or ABI of a voluntary case
under the United States federal bankruptcy laws, or the institution
by the Company or ABI of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition
or answer or consent seeking reorganization, an arrangement with
creditors or an order for relief under the United States federal
bankruptcy laws or any other applicable federal or state law, or the
consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other official) of the Company or ABI or of any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become
due, or, to the knowledge of the Trustee, the taking of corporate
action by the Company or ABI in furtherance of any such action;
provided, that any event referred to in (5) or (6) above in respect of ABI
shall constitute an Event of Default only if, at the time of determination, ABI
shall continue to be liable in respect of the Securities pursuant to a
Supplemental Agreement.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If any one or more of the Events of Default described in clauses (1), (2)
or (3) of Section 501 with respect to Securities of any Series or Issue shall
happen, then, and in each and every such case, during the continuance of any
such Event of Default, either the Trustee, by notice in writing to the Company,
or the Holders of at least 25% in principal amount of such Securities then
Outstanding, by notice in writing to the Company and to the Trustee, may
declare the principal amount (or, if such Securities are Original Issue
Discount Securities, such portion of
Exhibit 4.1 - Page 27
the principal amount as may then be payable on acceleration as provided in the
terms thereof) of all such Securities then Outstanding (if not then due and
payable) to be immediately due and payable, and upon any such declaration the
same shall become and be immediately due and payable, anything in this
Indenture or in the Securities contained to the contrary notwithstanding. If
any one or more of the Events of Default described in clause (4) of Section 501
shall happen, then, and in each and every such case, during the continuance of
any such Event of Default, either the Trustee, by notice in writing to the
Company, or the Holders of at least 25% in principal amount of the Securities
of all Issues then Outstanding (or, if such default is not applicable to all
Issues of the Securities, the Holders of at least 25% in principal amount of
the Outstanding Securities of all Issues to which it is applicable) (in each
case voting as a single class), by notice in writing to the Company and to the
Trustee, may declare the principal amount (or, if the Securities of any such
Issues are Original Issue Discount Securities, such portion of the principal
amount as may then be payable on acceleration as provided in the terms of that
Issue) of all the Securities (or all the Securities of such Issues, if such
default is not applicable to all Issues of the Securities) then Outstanding (if
not then due and payable) to be immediately due and payable, and upon any such
declaration the same shall become and be immediately due and payable, anything
in this Indenture or in the Securities contained to the contrary
notwithstanding. If any one or more of the Events of Default described in
clauses (5) or (6) of Section 501 shall happen, then, and in each and every
such case, during the continuance of any such Event of Default, either the
Trustee, by notice in writing to the Company, or the Holders of at least 25% in
principal amount of all the Securities then Outstanding (voting as a single
class), by notice in writing to the Company and to the Trustee, may declare the
principal amount (or, if any Securities are Original Issue Discount Securities,
such portion of the principal amount as may then be payable on acceleration as
provided in the terms thereof) of all the Securities then Outstanding (if not
then due and payable), to be immediately due and payable, and upon any such
declaration the same shall become and be immediately due and payable, anything
in this Indenture or in the Securities contained to the contrary
notwithstanding.
At any time after such a declaration of acceleration has been made with
respect to any Securities and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of such Securities
Outstanding (voting as a single class) by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all such
Securities,
(B) the principal of (and premium, if any, on) such
Securities which have become due otherwise than by such
declaration of acceleration and interest thereon from the
respective due dates thereof at the respective rates borne
by such Securities or, in the case of Original Issue
Discount Securities, at rates equal to the respective
Yields to Maturity thereof, to the extent that payment of
such interest is lawful,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest from
the respective due dates thereof at the respective rates
borne by such Securities or, in the case of Original Issue
Discount Securities, at rates equal to the respective
Yields to Maturity thereof, and
Exhibit 4.1 - Page 28
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to such Securities,
other than the non-payment of the principal of such Securities which
have become due solely by such acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security when such interest becomes due and payable
and such default continues for the period of grace, if any, provided
for with respect to such payment, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at its Maturity and such default
continues for the period of grace, if any, provided for with respect
to such payment,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of all such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, with interest, to
the extent that payment of such interest is lawful, upon the overdue principal
(and premium, if any) and installments of interest from the due date thereof at
the rate borne by such Securities or, in the case of Original Issue Discount
Securities, at a rate equal to the Yield to Maturity thereof, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to an Issue of Securities occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of such Securities by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or its or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the
Exhibit 4.1 - Page 29
payment of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount (or, in the
case of Original Issue Discount Securities, such portion of the
principal amount thereof as shall then be provable in bankruptcy as
specified therein) of principal (and premium, if any) and interest
owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any receiver, liquidator, assignee, trustee, custodian, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article with respect
to the Securities of an Issue shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities of such Issue and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 607;
SECOND: In case the principal of the Securities in respect of
which moneys have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such
Issue in default in the order of the maturity of the installments of
such interest, with interest (to the extent that payment of such
interest is lawful and such interest has been collected by the
Trustee) upon the overdue installments of interest at the same rate
as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) applicable to such
Exhibit 4.1 - Page 30
Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD: In case the principal of the Securities in respect of
which moneys have been collected shall have become and shall be then
due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such Issue for principal and
interest, with (to the extent that payment of such interest is lawful
and such interest has been collected by the Trustee) interest upon
the overdue principal, and upon overdue installments of interest at
the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) applicable to the
Securities of such Issue; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon
the Securities of such Issue, then to the payment of such principal
and interest, without preference or priority of principal over
interest, or of interest over principal, or of any installment of
interest over any other installment of interest, or of any Security
of such Issue over any other Security of such Issue, ratably to the
aggregate of such principal and accrued and unpaid interest.
Section 507. Limitation on Suits.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) the Trustee shall have received written notice from such
Holder of a continuing Event of Default in respect of such
Securities;
(2) the Trustee shall have received a written request from the
Holders of not less than 25% in principal amount of the Outstanding
Securities of the Issue or Series in respect of which the Event of
Default has occurred to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the Holders of
a majority in principal amount of the Outstanding Securities of such
Series or Issue;
it being understood and intended that no one or more Holders of Securities of
any Series or Issue shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Securities of that Series or
Issue, or to obtain or to seek to obtain priority or preference over any other
Holders of Securities of that Series or Issue or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Holders of Securities of such Series or Issue.
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the absolute and unconditional right to receive payment of
the principal of (and premium, if any) and (subject to Section 307) interest on
such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to
Exhibit 4.1 - Page 31
institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any Series (voting as a single class) shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee in respect of the Securities of such Series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or unduly prejudicial to the rights of
Holders of Securities of all Series not joining in such direction or,
in the opinion of the Trustee, involve the Trustee in personal
liability, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of all Series affected thereby (voting as a single
class) may on behalf of the Holders of all such Securities waive any past
default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
Exhibit 4.1 - Page 32
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities
of all Series (or, if the matter in issue does not relate to all Series of
Securities, then the Holders of 10% in principal amount of the Outstanding
Securities of all Series to which such issue relates) (treated as a single
class), or to any suit instituted by any Holder of any Securities for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any such Security on or after the respective Stated Maturities expressed
therein (or, in the case of redemption, on or after the Redemption Date).
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 516. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer,
director or employee, as such, past, present or future, of the Company or of
any successor corporation, either directly or through the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations
of the Company, and that no such personal liability whatever shall attach to,
or is or shall be incurred by, the incorporators, stockholders, officers,
directors or employees, as such, of the Company or of any successor
corporation, or any of the foregoing Persons, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such
Exhibit 4.1 - Page 33
rights and claims against, every such incorporator, stockholder, officer,
director or employee, as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of such
Securities.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities of all Series (voting as a single class)
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
Exhibit 4.1 - Page 34
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder in respect of
any Issue of Securities, the Trustee shall transmit by mail to all Holders of
the Securities of such Issue, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on any Security or in the payment of any Sinking Fund
installment, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Holders; and
provided, further, that in the case of any default of the character specified
in Section 501(4) no such notice to Holders shall be given until at least 30
days after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default.
Section 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, security or other paper or document believed
by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
Exhibit 4.1 - Page 35
investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to make a reasonable examination
of the books, records and premises of the Company, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Section
608, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disburse-
ments and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by
Exhibit 4.1 - Page 36
the Trustee as such, except funds held in trust for the benefit of the Holders
of particular Securities.
Section 608. Disqualification; Conflicting Interests.
The Trustee shall comply with the terms of Section 310 (b) of the TIA.
There shall be excluded from the terms of Section 310(b) of the TIA the
following Indentures and all series of debt securities issuable thereunder:
(1) the Indenture dated as of September 1, 1992 between the
Company and the Trustee, pursuant to which there have been issued
$200,000,000 principal amount 6.90% Notes due October 1, 2002,
$200,000,000 principal amount 7 % Debentures Due July 1, 2023,
$200,000,000 principal amount of 6.75% Notes Due June 1, 2005 and
$48,000,000 principal amount Medium-Term Notes;
(2) the Indenture of Trust dated as of September 1, 1989
between the Company and the Trustee, as successor to Manufacturers
Hanover Trust Company, pursuant to which there has been issued
$241,729,000 principal amount 8% Series A Senior Convertible
Debentures Due 1996;
(3) the Indenture of Trust dated as of August 1, 1987 between
the Company and the Trustee, as successor to Manufacturers Hanover
Trust Company, pursuant to which there have been issued $200,000,000
principal amount 10% Sinking Fund Debentures Due July 1, 2018,
$350,000,000 principal amount 9% Debentures Due December 1, 2009,
$250,000,000 principal amount 8 % Notes Due December 1, 1999,
$100,000,000 principal amount 8 % Notes Due July 15, 1995,
$225,000,000 principal amount Medium-Term Notes and $60,000,000
principal amount Medium-Term Notes, Second Series; and
(4) the Indenture of Trust dated as of October 1, 1982 between
the Company and the Trustee, pursuant to which there have been issued
$150,000,000 principal amount 8-5/8% Sinking Fund Debentures Due
December 1, 2016 and $150,000,000 principal amount 8-1/2% Sinking
Fund Debentures Due March 1, 2017;
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $5,000,000, subject
to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. Neither the Company nor
any Affiliate of the Company shall serve as Trustee hereunder. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
Exhibit 4.1 - Page 37
(b) The Trustee may resign at any time with respect to the Securities of
any Series by giving written notice thereof to the Company. If an instrument
of acceptance by a successor Trustee shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
Series.
(c) The Trustee may be removed at any time with respect to the Securities
of any Series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such Series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee for a Series of Securities shall cease to be
eligible under Section 609 and shall fail to resign after written
request therefor by the Company or by any such Holder of such
Securities, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, unless
the Trustee's duty to resign is stayed as provided in Section 608 of this
Indenture, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more Series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those Series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such Series and that any time there shall be only one Trustee
with respect to the Securities of any particular Series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any Series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such Series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to
the Securities of such Series and supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
Series shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security of such Series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such Series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any Series and each appointment
of a successor Trustee with respect to the Securities of any Series by mailing
written notice of such event by first class mail,
Exhibit 4.1 - Page 38
postage prepaid, to the Holders of Securities of such Series as their names and
addresses appear in the Security Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of such Series and the
address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) Every successor Trustee appointed hereunder with respect to all
Securities shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its lien, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) Series, the Company, the
retiring Trustee, upon payment of its charges, and each successor Trustee with
respect to the Securities of one or more Series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those Series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
Series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those Series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
Series to which the appointment of such successor Trustee relates, subject
nevertheless to its lien, if any, provided for in Section 607.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Exhibit 4.1 - Page 39
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
ARTICLE SEVEN
Holders' Lists and Reports By Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than March 15 and September 15 in
each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of the Securities
of each Series as of the preceding March 1 or September 1,
respectively, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
Section 702. Preservation Of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities of each Series
contained in the most recent list furnished to the Trustee in respect of such
Series as provided in Section 701 and the name and addresses of Holders
received by the Trustee in its capacity as Security Registrar (if so acting).
The Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.
(b) If three or more Holders of Securities of any Series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish the
Trustee reasonable proof that each such applicant has owned a Security of such
Series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such Series with respect to
their rights under this Indenture or under the Securities and is accompanied by
a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five business days after
the receipt of such application, at its election, either
(i) afford such applicants access to the information in respect
of such Series preserved at the time by the Trustee in accordance
with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such Series whose names and addresses appear
in the information preserved at the time
Exhibit 4.1 - Page 40
by the Trustee in accordance with Section 702(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities of such Series whose name and address appear
in the information preserved at the time by the Trustee in accordance with
Section 702(a), a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of said Holders or would be in violation of
applicable law. Such written statement shall specify the basis of such
opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Holders with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with Section 702(b),
regardless of the source from which such information was derived, and that
neither the Trustee nor the Company shall be held accountable by reason of
mailing any material pursuant to a request made under Section 702(b).
Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first
such date after the issuance of the first series of Securities hereunder, the
Trustee shall transmit by mail to all Holders of Securities of each Series, as
their names and addresses appear in the Security Register, a brief report dated
as of such May 15, in accordance with and to the extent required by Section 313
of the TIA.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities of such Series are listed, with the Company, and also with the
Commission. The Company will notify the Trustee when the Securities of any
Series are listed on any stock exchange.
Section 704. Reports by Company.
The Company will
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it will file
Exhibit 4.1 - Page 41
with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules
and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc., only on Certain Terms.
The Company shall not, nor shall it permit ABI to, consolidate with or
merge into any other corporation or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company or ABI is merged or the Person which acquires by
conveyance, transfer or lease the properties and assets of the
Company or ABI substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America
or any State thereof or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, (a) in the case
of such a transaction with respect to the Company, the due and
punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or
observed and (b) in the case of such a transaction with respect to
ABI, the obligations of ABI under the Supplemental Agreements;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time,
or both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
This Section 801 shall not apply to any merger or consolidation in which
the Company or ABI, as the case may be, is the surviving corporation, and shall
no longer apply with respect to ABI if the liability of ABI for payment of the
Securities shall have been terminated as provided in the form of Supplemental
Agreement attached hereto.
Exhibit 4.1 - Page 42
Section 802. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance, transfer or lease of
the properties and assets of the Company or ABI substantially as an entirety in
accordance with Section 801, the successor corporation formed by such
consolidation or into which the Company or ABI is merged or to which such
conveyance, transfer or lease is made (1) in the case of such a transaction
with respect to the Company, shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as the Company
herein, (2) in case of any such conveyance or transfer by the Company, the
Person named as the "Company" in the first paragraph of this instrument or any
successor corporation which shall theretofore have become such in the manner
prescribed in this Article shall be released from its liability under this
Indenture and as obligor on any of the Securities and (3) in the case of such a
transaction with respect to ABI, unless the obligations of ABI in respect of
the Securities shall have been terminated as provided in the form of
Supplemental Agreement, the successor corporation shall succeed to the
liabilities and obligations of ABI under each Supplemental Agreement relating
to each Outstanding Series of Securities.
Section 803. Evidence to be Furnished Trustee.
The Trustee may receive an Officers' Certificate and an Opinion of Counsel
as conclusive evidence that any such consolidation, merger, conveyance,
transfer or lease, and any such assumption, complies with the provisions of
this Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company (when authorized by a
Board Resolution) and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to provide for the issuance and the terms of any particular
Series of Securities, the rights and obligations of the Company and
the Holders of the Securities of such Series, the form or forms of
the Securities of such Series and such other matters in connection
therewith as the Board of Directors of the Company shall consider
appropriate, including, without limitation, provisions for (a)
additional or different covenants, restrictions or conditions
applicable to such Series, (b) additional or different Events of
Default in respect of such Series, (c) a longer or shorter period of
grace and/or notice in respect of any provision applicable to such
Series than is provided in Section 501, (d) immediate enforcement of
any Event of Default in respect of such Series or (e) limitations
upon the remedies available in respect of any Events of Default in
respect of such Series or upon the rights of the holders of
Securities of such Series to waive any such Event of Default;
provided, that this paragraph (3) shall not be deemed to require the
execution of a supplemental indenture to provide for the issuance of
any Series of
Exhibit 4.1 - Page 43
Securities unless the same shall be provided for in the Authorizing
Resolution relating thereto; and
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of
one or more Series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); and
(5) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein; and
(6) to make any other change which, in the opinion of counsel
to the Company, does not materially adversely affect the interests of
the Holders of the Series of Securities affected thereby.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of all Series affected thereby (voting as
a single class), by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by a Board Resolution) and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of such Securities under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security which would be due and payable upon
acceleration under Section 502 or provable in bankruptcy under
Section 504, or change the coin or currency in which any Security or
any interest thereon is payable or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1010, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Security affected
thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular Series of Securities, or which modifies the
rights of the Holders of Securities of such Series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other Series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Exhibit 4.1 - Page 44
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Unless the Company shall determine, based on an Opinion of Counsel
delivered to the Trustee, that the same shall not be required, every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of TIA as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Authenticating
Agent in exchange for Outstanding Securities of the same Series and Issue.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay (or cause to be paid) the
principal of (and premium, if any) and interest on the Securities of each
Series in accordance with the terms of such Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
Except as otherwise provided in the Authorizing Resolution in respect of
any Series, the Company will maintain an office or agency in The Borough of
Manhattan, The City of New York, where Securities may be presented or
surrendered for payment, and will maintain an office or agency in The Borough
of Manhattan, The City of New York, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company initially appoints the Trustee as such agent at its Corporate Trust
Office for said purposes. The Company will give prompt written notice to the
Trustee of any change in the location of such office or agency. If at any time
the Company shall fail to maintain such office or agency or
Exhibit 4.1 - Page 45
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside of such Borough) where the Securities may be
presented or surrendered for any or all of such purposes, and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in such Borough for such purposes.
Section 1003. Money for Security Payments to be Held in Trust;
Appointment of Paying Agent.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of (and premium, if any) or interest
on any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on or
before each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum, or make other arrangements
so that there will be moneys, in each case sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal (and premium, if any) or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act. The Company
initially appoints the Trustee as Paying Agent.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment
of principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has
Exhibit 4.1 - Page 46
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once or mailed to each such
holder or both, in a newspaper published in the English language customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 1004. Statement as to Default.
The Company will deliver to the Trustee, on or before a date not more than
four months after the end of each fiscal year (which on the date hereof ends on
December 31) of the Company ending after the date hereof, a statement (which
shall not be deemed an Officers' Certificate and need not conform with any of
the provisions of Section 102) signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company,
stating that in the course of the performance by the signers of their duties as
officers of the Company and based upon a review made under their supervision of
the activities of the Company during such year and of the Company's performance
under this Indenture they would normally obtain knowledge whether or not the
Company is in default in the performance of any covenant or agreement set forth
in the Indenture, stating whether or not they have obtained knowledge that the
Company is in default in the performance of any such covenant or agreement, and
if so, specifying each such default of which the signers have knowledge and the
nature thereof. If the Company shall have designated any Unrestricted
Subsidiaries to be Restricted Subsidiaries, or any Restricted Subsidiaries to
be Unrestricted Subsidiaries, during such fiscal year, such statement shall so
indicate and provide the identities of the Subsidiaries in question. The
Company will notify the Trustee promptly in writing of any change of its fiscal
year.
Section 1005. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders of the
Securities.
Section 1006. Limitation upon Liens.
(a) The Company will not create, assume, guarantee or suffer to exist,
and will not cause, suffer or permit any Restricted Subsidiary to create,
assume, guarantee or suffer to exist, any indebtedness for borrowed money
secured by pledge of, or mortgage or lien on, any of its Principal Plants, or
on any capital stock of any Restricted Subsidiary, other than
(i) purchase money pledges of, or purchase money mortgages or
liens on, property acquired (including through merger or consolida-
tion) after the date of execution of this Indenture, so long as such
pledges, mortgages and liens shall attach only to the assets so
acquired and improvements thereon,
Exhibit 4.1 - Page 47
(ii) pledges, mortgages or liens on property acquired after the
date of execution of this Indenture (1) existing at the time of
acquisition of such property (including through merger or
consolidation) or (2) which secure indebtedness the proceeds of which
are used to pay, or to reimburse the Company or any Restricted
Subsidiary for, the cost of the acquisition or construction of such
property (provided such indebtedness is incurred within 180 days
after such acquisition or completion of such construction), so long
as such pledges, mortgages and liens shall attach only to the assets
so acquired and improvements thereon,
(iii) pledges of or mortgages or liens on property of a
Restricted Subsidiary existing at the time it becomes a Restricted
Subsidiary,
(iv) pledges, mortgages or liens to secure all or any part of
the cost of development or construction of any property or assets or
improvements thereon and which shall be released or satisfied within
120 days after completion of such development or construction,
(v) pledges, mortgages or liens required in connection with the
acquisition, construction or development of additions or extensions
to Principal Plants which shall be financed by obligations described
in Sections 141 145 of the Internal Revenue Code of 1986, as amended,
or by obligations entitled to substantially similar tax benefits
under other legislation or regulations in effect from time to time,
(vi) pledges, mortgages or liens securing indebtedness owing to
the Company or a Restricted Subsidiary by a Restricted Subsidiary,
(vii) pledges, mortgages or liens existing at the date of
this Indenture,
(viii) extensions, renewals or replacements of pledges, mort-
gages or liens referred to in clauses (i) to (vii), inclusive, above,
or (xi) below, provided that the amount of indebtedness secured by
such extension, renewal or replacement shall not exceed the principal
amount of indebtedness being extended, renewed or replaced, nor shall
the pledge, mortgage or lien be extended to any additional Principal
Plant,
(ix) as permitted under Subsection (b) or Subsection (d) of this
Section 1006,
(x) pledges, mortgages or liens incurred in connection with
sale-leaseback transactions permitted under Section 1007, and
(xi) pledges, mortgages or liens required in connection with any
program, law, statute or regulation of any state or local
governmental entity or authority which provides financial or tax
benefits not available without such pledge, mortgage or lien,
provided that the obligations secured thereby are obligations that
are in lieu of, or reduce, a property tax or other payment obligation
that itself would have been secured by a pledge, mortgage or lien
permitted hereunder,
without effectively providing that the Securities (together with, if the
Company shall so determine, any other indebtedness of the Company then existing
or thereafter created ranking equally with the Securities and any other
indebtedness of the Restricted Subsidiary then existing or thereafter created)
shall be secured by the security of such secured indebtedness equally and
ratably therewith.
(b) If the Company or any Restricted Subsidiary shall at any time enter
into a merger or consolidation with another corporation or purchase all or
substantially all of the assets of another corporation, or if the Company shall
sell all or substantially all of its assets to another corporation and if such
other corporation has outstanding indebtedness secured by a mortgage or other
lien which, by reason of an after-acquired property clause or similar provision
therein
Exhibit 4.1 - Page 48
contained, would extend, after such merger, consolidation, sale or purchase, to
any Principal Plant owned by the Company or such Restricted Subsidiary
immediately prior to such merger, consolidation, sale or purchase, the Company
or such Restricted Subsidiary, as the case may be, shall in such event be
deemed to have created a mortgage or lien, within the prohibition of Subsection
(a) of this Section 1006, unless (i) such merger or consolidation involving a
Restricted Subsidiary shall constitute a disposition by the Company of its
interest in the Restricted Subsidiary, or (ii) either (A) at or prior to the
effective date of such merger, consolidation, sale or purchase, such mortgage
or lien shall have been released of record or otherwise satisfied to the extent
it would extend to such Principal Plant or (B) prior to such merger,
consolidation, sale or purchase, the Company or such Restricted Subsidiary, as
the case may be, shall have created, as security for the Securities (and, if
the Company shall so determine, as security for any other indebtedness of the
Company then existing or thereafter created ranking equally with the Securities
and any other indebtedness of the Restricted Subsidiary then existing or
thereafter created), a valid lien which, upon completion of said merger,
consolidation, sale or purchase, will rank prior to the lien of such mortgage
or other lien of such other corporation on such Principal Plant.
(c) If pursuant to the provisions of this Section 1006 the Company or any
Restricted Subsidiary shall at any time be obligated to secure the Securities
(together with, if the Company shall so determine, any other indebtedness then
existing or thereafter created ranking equally with the Securities and any
other indebtedness of the Restricted Subsidiary then existing or thereafter
created), the Company covenants and agrees that it will promptly furnish to the
Trustee
(i) an Officers' Certificate stating that the applicable
covenant of the Company above set forth in this Section 1006 has been
complied with; and
(ii) an Opinion of Counsel to the effect that such covenant has
been complied with.
(d) Notwithstanding the foregoing provisions of this Section 1006, the
Company and any one or more Restricted Subsidiaries may create, assume,
guarantee or suffer to exist any indebtedness for borrowed money otherwise
subject to the foregoing restrictions and in addition to that permitted by
Subsection (a) or (b) of this Section 1006 (other than pursuant to clause (x)
of said Subsection (a)), and renew, extend or replace such indebtedness for
money borrowed; provided, that, at the time of such creation, assumption,
renewal, extension or replacement, the aggregate amount of such indebtedness
for money borrowed, when added to the fair market value of property transferred
in sale-leaseback transactions as permitted by Section 1007(c) and the
aggregate amount of indebtedness for borrowed money created, assumed,
guaranteed or permitted to exist as permitted by Section 1008(b) (computed
without duplication of amounts constituting indebtedness, referred to in this
Subsection (d)), does not at the time exceed 10% of Net Tangible Assets.
Section 1007. Sale-Leaseback Transactions Relating to Principal Plants.
(a) Except to the extent permitted under Subsection (c) of this Section
1007, and except 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 property by the Company or any Restricted Subsidiary will be
discontinued, the Company shall not sell any Principal Plant as an entirety, or
any substantial portion thereof, with the intention of taking back a lease of
such property and the Company will not permit any Restricted Subsidiary to sell
to anyone other than the Company or a Restricted Subsidiary any Principal Plant
as an entirety, or any substantial portion thereof, with the intention of
taking back a lease of such property unless
Exhibit 4.1 - Page 49
(i) the net proceeds of such sale (including any purchase money
mortgages received in connection with such sale) are at least equal to the
fair market value (as determined by Board Resolution) of such property and
(ii) subject to Subsection (d) of this Section 1007, the Company
shall, within 120 days after the transfer of title to such property
(A) purchase, and surrender to the Trustee for retirement
as provided in this Section 1007, a principal amount of
Securities equal to the net proceeds derived from such sale
(including the amount of any such purchase money mortgages), or
(B) repay other Funded Debt of the Company or any
Restricted Subsidiary in an amount equal to such net proceeds,
or
(C) expend an amount equal to such net proceeds for the
expansion, construction or acquisition of a Principal Plant, or
(D) effect a combination of such purchases, repayments and
plant expenditures in an amount equal to such net proceeds.
(b) At or prior to the date 120 days after a transfer of title to a
Principal Plant which shall be subject to the requirements of this Section
1007, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that the covenant of the
Company in Section 1007(a) has been complied with and setting forth in
detail the manner of such compliance, which certificate shall contain
information as to (A) the amount of Securities theretofore redeemed and
the amount of Securities theretofore purchased by the Company and
cancelled by the Trustee and the amount of Securities purchased by the
Company and then being surrendered to the Trustee for retirement, (B) the
amount thereof previously credited under Subsection (d) of this Section
1007, (C) the amount thereof which it then elects to have credited on its
obligation under Subsection (d) of this Section 1007, and (D) any amount
of other indebtedness which the Company has repaid or will repay and of
the expenditures which the Company has made or will make in compliance
with its obligation under Subsection (a) of this Section 1007,
(ii) a deposit with the Trustee for retirement of the Securities then
being surrendered as set forth in such certificate; and
(iii) an Opinion of Counsel to the effect that such covenant has
been complied with.
(c) Notwithstanding the restriction of Subsection (a) of this Section
1007, the Company and any one or more Restricted Subsidiaries may transfer
property in sale-leaseback transactions which would otherwise be subject to
such restriction if the aggregate amount of the fair market value of the
property so transferred, when added to the aggregate amount of indebtedness for
borrowed money permitted by Section 1006(d) and Section 1008(b) which shall be
outstanding at the time (computed without duplication of the value of property
transferred as provided in this Subsection (c)), does not at the time exceed
10% of Net Tangible Assets.
(d) The Company, at its option, shall be entitled to a credit, in respect
of its obligation to purchase and retire Securities under this Section 1007,
for the principal amount of any Securities deposited with the Trustee for the
purpose and also for the principal amount of (i) any Securities theretofore
redeemed at the option of the Company and (ii) any Securities previously
purchased by the Company and cancelled by the Trustee, and in each case not
theretofore applied as a credit under this Subsection (d) or Section 1202.
(e) For purposes of this Section 1007, the amount or the principal amount
of Securities which are Original Issue Discount Securities shall be the
principal amount of said Original Issue
Exhibit 4.1 - Page 50
Discount Securities that on the date of the purchase or redemption of such
Securities referred to in this Section could be declared to be due and payable
pursuant to Section 502.
Section 1008. Limitation Upon Funded Debt of Restricted Subsidiaries.
(a) The Company will not permit any Restricted Subsidiary to create,
assume or permit to exist any Funded Debt other than (A) Funded Debt secured by
a mortgage, pledge or lien which is permitted to such Restricted Subsidiary
under the provisions of Section 1006, (B) Funded Debt owed to the Company or
any Restricted Subsidiary, (C) Funded Debt of a corporation existing at the
time it becomes a Restricted Subsidiary, (D) Funded Debt created in connection
with, or with a view to, compliance by such Restricted Subsidiary with the
requirements of any program, law, statute or regulation of any federal, state
or local governmental authority, which is applicable to such Restricted
Subsidiary and which provides financial or tax benefits to such Restricted
Subsidiary which are not available directly to the Company or available
directly to the Company only on terms which the Company determines are not as
favorable as those available to the Restricted Subsidiary, (E) guarantees
existing at the date of this Indenture, and (F) guarantees and co-obligations,
in each case on terms substantially similar to the terms set forth in the form
of Supplemental Agreement attached hereto, of Funded Debt with respect to which
the Company is liable (as direct obligor, co-obligor, additional guarantor or
otherwise), provided, that this clause (F) shall apply only so long as ABI
shall continue to be a co-obligor in respect of the Securities issued hereunder
on the terms provided in the form of Supplemental Agreement.
(b) Notwithstanding the provisions of paragraph (a) of this Section 1008,
any Restricted Subsidiary may create, assume or permit to exist any Funded Debt
in addition to that permitted by paragraph (a) of this Section 1008, and renew,
extend or replace such Funded Debt, provided that at the time of such creation,
assumption, renewal, extension or replacement, and after giving effect thereto,
the aggregate amount of such Funded Debt which would otherwise be subject to
the foregoing restriction, together with the aggregate amount of indebtedness
for borrowed money permitted by Subsection (d) of Section 1006 and the
aggregate amount of the fair market value of property transferred in
sale-leaseback transactions as permitted by Subsection (c) of Section 1007
(computed without duplication of amounts) does not at the time exceed 10% of
Net Tangible Assets.
Section 1009. Maintenance of Insurance.
The Company will cause its property and the property of each Subsidiary to
be insured at all times against loss from damage or destruction by fire and
other risks to the extent and in such manner as is customary for companies
comparable in size to the Company and conducting businesses similar in size and
nature to the businesses carried on by the Company from time to time; provided,
however, that the Company and each of its Subsidiaries may adopt (in lieu of or
supplementing such insurance) any other or supplemental plan or method of
protection against loss, including self-insurance plans, as may be determined
by the Company to be in the overall best interests of the Company from time to
time.
Section 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1005 to 1009, inclusive, and any
other covenant or condition set forth in any Authorizing Resolution or
supplemental indenture for the benefit of the Holders of the Securities or any
particular Series of Securities, if the Holders of not less than a majority in
principal amount of the Securities at the time Outstanding of all Series which
are entitled to the benefits thereof (voting as a single class) shall, by Act
of such Holders, either waive such
Exhibit 4.1 - Page 51
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force
and effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Right of Redemption.
Redeemable Securities may be redeemed otherwise than through the operation
of the Sinking Fund provided for in Article Twelve at the election of the
Company at the times, on the conditions and at the Redemption Prices specified
therein, in (or pursuant to) the Authorizing Resolution relating thereto and in
the supplemental indenture (if any) executed in connection with the issuance of
such Securities, any Redemption Price to be accompanied by accrued interest to
the Redemption Date.
Section 1102. Applicability of Article.
Redemption of Securities at the election of the Company or otherwise, as
permitted or required by any provision referred to in Section 1101, shall be
made in accordance with such provision and this Article.
Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or set forth in an Officers' Certificate which states that
such election has been duly authorized by all requisite corporate action on the
part of the Company. In case of any redemption at the election of the Company
of less than all of the Securities the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of the Series or Issue or the several Series
or Issues, as the case may be, to be redeemed. In the case of any redemption
of Securities prior to the expiration of any restriction on such redemption
provided in the Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance with
such restriction.
Section 1104. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any Series or Issue are to be redeemed,
the particular Securities of such Series or Issue to be redeemed shall be
selected not more than 90 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such Series or Issue not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
the minimum authorized denomination of the Series or Issue or any integral
multiple thereof) of the principal amount of such Securities of a denomination
larger than such minimum denomination. If the Company shall so specify,
Securities held by the Company or any Subsidiary shall not be included in the
Securities selected for redemption.
Exhibit 4.1 - Page 52
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
Section 1105. Notice of Redemption.
Notice of redemption shall be given by first class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of the Series or
Issue are to be redeemed, the identification (and, in the case of
partial redemption, the principal amount) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, and that interest
thereon shall cease to accrue on and after said date,
(5) that the redemption is for a Sinking Fund, if such is the
case; and
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Rice.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name of and at the expense of the Company.
Section 1106. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) any accrued interest on, all the
Securities or portions thereof which are to be redeemed on that date.
Section 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price thereof and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor
Exhibit 4.1 - Page 53
Securities, registered as such on the relevant Regular or Special Record Date
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid
or duly provided for, bear interest from the Redemption Date at the rate borne
by the Security or, in the case of Original Issue Discount Securities, at a
rate equal to the Yield to Maturity thereof.
Section 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
the office or agency of the Company maintained for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute and the Authenticating
Agent shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities of the same Issue, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered; except that if a Global Security is so
surrendered, the Company shall execute, and the Trustee shall authenticate,
upon Company Order, and deliver to the Depositary for such Global Security
without service charge, a new Global Security in a denomination equal to and in
exchange for the unredeemed portion of the principal amount of the Global
Security so surrendered.
ARTICLE TWELVE
Sinking Fund
Section 1201. Sinking Fund Payments.
As and for a Sinking Fund for the retirement of Sinking Fund Securities,
the Company will, until all such Securities are paid or payment thereof is duly
provided for, deposit in accordance with Section 1106, at such times and
subject to such terms and conditions as shall be specified in the provisions of
such Securities and the Authorizing Resolution and supplemental indenture (if
any) relating thereto, such amounts in cash as shall be required or permitted
under such provisions in order to redeem Securities on the specified Redemption
Dates at a Redemption Price equal to their principal amounts, less in each such
case the amount of any credit against such payment received by the Company
under Section 1202. Each such Sinking Fund payment shall be applied to the
redemption of Securities on the specified Redemption Date as herein provided.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Securities of the same Issue (other than any
previously called for redemption or theretofore applied as a credit against a
Sinking Fund payment or as a credit under Section 1007(d)) and (2) may apply as
a credit Securities of the same Issue redeemed at the election of the Company
pursuant to Section 1101 or through the operation of the Sinking Fund in any
period in excess of the minimum amount required for such period under Section
1201 or the provisions relating to such Issue referred to in Section 1201 and
not theretofore applied as a credit against a Sinking Fund payment or a credit
under Section 1007(d), in each case in satisfaction of all or any part of any
Sinking Fund payment required to be made pursuant to Section 1201. Each such
Security so delivered or applied shall be credited for such purpose
Exhibit 4.1 - Page 54
by the Trustee at a Redemption Price equal to its principal amount and the
required amount of such Sinking Fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
If in any year the Company shall elect to redeem in excess of the minimum
principal amount of Securities required to be redeemed pursuant to Section 1201
or to satisfy all or any part of any Sinking Fund payment by delivering or
crediting Securities pursuant to Section 1202, then at least 60 days prior to
the date on which the Sinking Fund payment in question shall be due (or such
shorter period as shall be approved by the Trustee), the Company shall deliver
to the Trustee an Officers' Certificate specifying the amount of the Sinking
Fund payment and the portions thereof which are to be satisfied by payment of
cash, by delivery of Securities or by crediting Securities, and, at least 45
days prior to the Sinking Fund payment date (or such shorter period as shall be
approved by the Trustee), will also deliver to the Trustee the Securities to be
so delivered. Such Officers' Certificate shall also state that the Securities
forming the basis of any such credit do not include any Securities which have
been redeemed through the operation of the Sinking Fund in the minimum amount
required under Section 1201, previously credited against any Sinking Fund
payment or credited in accordance with Section 1007(d). The Trustee shall,
upon the receipt of such Officers' Certificate (or, if it shall not have
received such an Officers' Certificate at least 60 days prior to the Sinking
Fund payment date, then following such 60th day), select the Securities to be
redeemed upon the next Sinking Fund payment date, in the manner specified in
Section 1104, and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
1105. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1107 and
1108.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance.
Section 1301. Defeasance. Upon the Company's election to have this
Section 1301 apply to one or more Series of Securities, and upon satisfaction
of the applicable conditions specified in Section 1303, the Company shall be
discharged from all of its obligations under such Securities and under this
Indenture with respect to such Securities, except for its obligations under
Sections 304, 305, 306, 607, 1002 and 1003 and this Article Thirteen (referred
to below as a defeasance).
Section 1302. Covenant Defeasance. Upon the Company's election to have
this Section 1302 apply to one or more Series of Securities, and upon
satisfaction of the applicable conditions specified in Section 1303, the
Company shall be released from its obligations under Article Eight and Sections
1005 through 1009, inclusive, with respect to such Securities and the
occurrence of an event specified in Section 501(4) (with respect to Article
Eight or any of said Sections 1005 through 1009, inclusive) shall not be deemed
to be an Event of Default with respect to such Securities (referred to below as
a covenant defeasance). Such covenant defeasance means that, with respect to
such Securities, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section, whether directly or indirectly by reason of any reference in this
Indenture or in any other document to any such Section, and that such
Securities shall thereafter be deemed not to be Outstanding for the purposes of
any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with the provisions of Article Eight
and
Exhibit 4.1 - Page 55
Sections 1005 through 1009, inclusive, but shall continue to be deemed
Outstanding for all other purposes hereunder.
Section 1303. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1301 or Section 1302 to the Securities of any Series:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (which term, for purposes of this Article, shall also refer to
another trustee satisfying the requirements of Section 609 who shall agree to
comply with the applicable provisions of this Article) in trust for the Holders
of such Securities (A) money in an amount, or (B) U.S. Government Obligations
(as defined below) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms, and with no further
reinvestment, will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge the principal of (and premium, if any) and interest on such
Securities at or before the Stated Maturity thereof (and to redeem any Sinking
Fund Securities required to be redeemed prior to such payment and discharge) in
accordance with this Indenture and such Securities. U.S. Government
Obligations means securities that are (x) direct obligations of the United
States of America for the timely payment of which its full faith and credit is
pledged or (y) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America, the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian of such U.S. Government
Obligation or of a specific payment of principal of or interest on any such
U.S. Government Obligation held by such custodian for the account of the holder
of such depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
such holder from any amount received by the custodian in respect of such U.S.
Government Obligation. Notwithstanding the foregoing, in the case of any
Redeemable Securities which are to be redeemed prior to their respective Stated
Maturities, no deposit under this paragraph shall be deemed sufficient to pay
and discharge such Securities as aforesaid until proper notice of such
redemption shall have been given in accordance with Article XI of this
Indenture or irrevocable instructions shall have been given to the Trustee to
give such notice.
(2) The Company shall have delivered to the Trustee an Opinion of Counsel
stating that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of such deposit, defeasance or covenant
defeasance and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would have been the case if such deposit,
defeasance or covenant defeasance had not occurred.
(3) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that such Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(4) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities shall
have occurred and be continuing on the date of such deposit or, insofar as any
event described in Section 501(5) or (6), at any time prior to the 91st day
after such deposit.
Exhibit 4.1 - Page 56
(5) Such deposit, defeasance or discharge shall not result in a violation
of, or constitute a default under, any other agreement or instrument to which
the Company is a party or by which it is bound.
(6) Such defeasance or covenant defeasance shall not result in the trust
arising from such deposit constituting an investment company as defined in the
Investment Company Act of 1940, as amended, or such trust shall be qualified
under such act or exempt from regulation thereunder.
(7) Such defeasance or covenant defeasance shall not cause the Trustee to
have a conflicting interest under the TIA with respect to any Securities of the
Company or any guarantor.
(8) The Company shall have delivered to the Trustee (i) an Officers'
Certificate setting forth such election under Section 1301 or 1302, as
applicable, and stating that all conditions precedent provided for relating to
such defeasance, discharge or deposit have been complied with, and (ii) an
Opinion of Counsel stating that all conditions precedent provided for relating
to such defeasance, discharge or deposit have been complied with.
Section 1304. Application of Funds.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee pursuant to Section 1303 in respect of one or more Series of
Securities shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay (in addition to any U.S. Government Obligations
deposited pursuant to Section 1303), and indemnify the Trustee against, any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1303 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Securities for which such
deposit is made.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1303 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
Section 1305. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 1304 by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities of such Series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article Thirteen
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 1304; provided, however, that if the Company
makes any payment of principal of and any premium or interest on any Security
following the reinstatement of its obligations, the
Exhibit 4.1 - Page 57
Company shall be subrogated to the rights of the Holders of the Securities of
such Series to receive such payment from the money held by the Trustee or the
Paying Agent.
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be as original, but all such counterparts
shall together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
Anheuser-Busch Companies, Inc.
By ____________________________
William J. Kimmins, Jr.
Treasurer
Chemical Bank,
Trustee
By ____________________________
Exhibit 4.1 - Page 58
Exhibit A
Supplemental Agreement
SUPPLEMENTAL AGREEMENT ("Agreement"), dated as of _____________, _____,
among Anheuser-Busch, Incorporated, a Missouri corporation (hereinafter called
"ABI"), having its principal office at One Busch Place, St. Louis, Missouri
63118, Anheuser-Busch Companies, Inc., a Delaware corporation (hereinafter
called the "Company"), having its principal office at One Busch Place, St.
Louis, Missouri 63118, and Chemical Bank, a New York corporation, as trustee
(hereinafter called the "Trustee").
RECITALS
The Company and the Trustee have entered into an Indenture, dated as of
___________, 199_, relating to the issuance by the Company of its securities
(the "Securities") from time to time in one or more series (a "Series"), which
provides that ABI will become jointly and severally liable with the Company in
respect of the Securities of each Series, and the Company has authorized the
issuance of such a Series, consisting of [description of Series] (the
"Securities").
In consideration for the assumption by the Company of certain outstanding
indebtedness of ABI, and in accordance with agreements entered into between the
Company and ABI at the time of such assumption, and in further consideration of
the anticipated benefits, direct and indirect, to ABI as a result of the
issuance of the Securities, and for other good and valuable consideration, ABI
is willing to become liable, as co-obligor with the Company, for payment of the
principal of (and premium, if any) and interest on the Securities, as
hereinafter provided, and subject to the conditions hereinafter set forth.
All things required to make this Agreement the valid agreement of ABI have
been done.
AGREEMENT
Now, Therefore, this Agreement witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined in the aforesaid Indenture), it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
of the aforesaid Holders of the Securities, as follows:
Section 1. Definitions. Unless otherwise defined herein, terms used
in this Agreement shall have the respective meanings assigned in Article One of
the Indenture.
Section 2. Liability of ABI For Payment.
(a) ABI Liable for Principal, Premium and Interest. Subject to the
provisions of paragraph (c) of this Section 2 as to the duration of such
obligation, ABI agrees duly and punctually to pay (or cause to be paid) the
principal of (and premium, if any) and interest on the Securities in accordance
with the terms of the Securities, this Agreement and the Indenture, except to
the extent that the same shall be paid by the Company. In carrying out the
foregoing obligation with respect to the Securities, ABI shall follow the
applicable procedures set forth in the Indenture and in the Securities to the
same extent as if it were named as the "Company" therein and had executed and
delivered the Securities as provided in the Indenture with respect to the
Company.
Exhibit 4.1 - Page 1
(b) Applicability of Provisions Relating to Remedies. The provisions of
Sections 503 through 516 of the Indenture shall be applicable to the
obligations of ABI set forth in this Agreement to the same extent as if such
provisions were set forth herein in their entirety; provided, that for these
purposes each reference to the "Company" in such Sections shall be deemed to
refer to ABI. The rights or remedies granted to the Trustee and the Holders in
this Agreement, in Article Five of the Indenture or elsewhere in the Indenture,
or in the Securities, shall be cumulative in respect of the Company and ABI,
and the Trustee and the Holders shall be entitled to exercise such rights in
respect of the Company and ABI jointly, separately or consecutively, and, no
such exercise in respect of the Company or ABI shall be limited or affected by
any exercise or failure to exercise in respect of the other, except that, as
contemplated by paragraph (a) of this Section 2, any payment by the Company of
principal of (and premium, if any) and interest on the Securities shall
eliminate the corresponding obligation of ABI to make the same payment.
(c) Duration of ABI Liability. The obligations of ABI as set forth in
this Agreement shall terminate, and this Agreement shall be of no further force
or effect, on that date (the "Termination Date") when:
(1) there shall not be outstanding any Funded Debt for which
ABI is liable, as direct obligor, co-obligor, guarantor or otherwise,
except for Funded Debt permitted under Section 1008 of the Indenture;
and
(2) all liability of ABI as co-obligor for Funded Debt of the
Company shall have been terminated or shall terminate at
approximately the same time as the termination of the obligations of
ABI hereunder; and
(3) there shall not have occurred and be continuing any Event
of Default or event which, with the passage of time or giving of
notice, or both, would become an Event of Default; and
(4) the Company shall have filed with the Trustee an Officers'
Certificate to the effect that the foregoing conditions have been
complied with, and shall have given notice by mail to all Holders of
Securities, as their names and addresses appear in the Security
Register, that such conditions have been complied with and that,
accordingly, ABI is to be released from liability in respect of the
Securities.
Section 3. Agreement Deemed Part of Indenture. This Agreement shall
be deemed to be a part of the Indenture, to the same extent as if it had been
set forth therein in its entirety. Subject to Section 2(c)(2) above, ABI
agrees that it shall be bound by all provisions of the Indenture applicable to
it or to this Agreement to the same extent as if ABI were a party to the
Indenture.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
Exhibit 4.1 - Page 2
In Witness Whereof, the parties hereto have caused this Agreement to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Anheuser-Busch, Incorporated
By _______________________________
Anheuser-Busch Companies, Inc.
By _______________________________
Chemical Bank,
as Trustee
By _______________________________
Exhibit 4.1 - Page 3
Exhibit 4.2
==============================================================================
Anheuser-Busch Companies, Inc.
to
______________________
Trustee
--------------------------------
Indenture
Dated as of ________________, 199__
--------------------------------
Debt Securities
==============================================================================
CROSS REFERENCE SHEET
between
The Indenture
and
The Trust Indenture Act of 1939
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
310 (a)(1) . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . 608, 610
(c) . . . . . . . . . . . . . . Not Applicable
311 (a) . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . Not Applicable
312 (a) . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . 702(c)
313 (a) . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . 703(a), 703(b)
(d) . . . . . . . . . . . . . . 703(b)
314 (a) . . . . . . . . . . . . . . 704, 1104
(b) . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . Not Applicable
315 (a) . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . 602, 703
(c) . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . 601(a)
(d)(2) . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . 514
316 (a)(1)(A) . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . 104(e)
317 (a)(1) . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . 1003
318 (a) . . . . . . . . . . . . . . 107
NOTE: This cross reference sheet shall not, for any purpose, be deemed to
be a part of the Indenture.
TABLE OF CONTENTS
PAGE
Parties . . . . . . . . . . . . . . . . . . 1
Recitals of The Company . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions . . . . . . . . . . . . . . . . 1
ABI . . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . 2
Affiliate; control . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . 2
Authorizing Resolution . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . 2
Company Request; Company Order . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . 2
Defaulted Interest . . . . . . . . . . . . . 2
Depositary . . . . . . . . . . . . . . . . . 2
Extendible Securities . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . 3
Funded Debt . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . 3
Interest . . . . . . . . . . . . . . . . . . 3
Interest Payment Date . . . . . . . . . . . 4
Issue . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . 4
Maturity Date . . . . . . . . . . . . . . . 4
Net Tangible Assets . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . 4
Original Issue Date . . . . . . . . . . . . 4
Original Issue Discount Securities . . . . . 4
Outstanding . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . 5
i
Principal Plant . . . . . . . . . . . . . . 5
Redeemable Securities . . . . . . . . . . . 5
Redemption Date . . . . . . . . . . . . . . 5
Redemption Price . . . . . . . . . . . . . . 5
Regular Record Date . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . 6
Restricted Subsidiary . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . 6
Security Register; Security Registrar . . . 6
Series . . . . . . . . . . . . . . . . . . . 6
Sinking Fund . . . . . . . . . . . . . . . . 6
Sinking Fund Securities . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . 6
Supplemental Agreement . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act; TIA . . . . . . . . . . 7
Unrestricted Subsidiary . . . . . . . . . . 7
Yield to Maturity . . . . . . . . . . . . . 7
Section 102. Compliance Certificates and Opinions . . . . 7
Section 103. Form of Documents Delivered to Trustee . . . 8
Section 104. Acts of Holders . . . . . . . . . . . . . . 8
Section 105. Notices, etc., to Trustee and Company . . . 9
Section 106. Notices to Holders; Waiver . . . . . . . . . 9
Section 107. Conflict with Trust Indenture Act . . . . . 9
Section 108. Effect of Headings and Table of Contents . . 9
Section 109. Successors and Assigns . . . . . . . . . . . 9
Section 110. Separability Clause . . . . . . . . . . . . 10
Section 111. Benefits of Indenture . . . . . . . . . . . 10
Section 112. Governing Law . . . . . . . . . . . . . . . 10
Section 113. Legal Holidays . . . . . . . . . . . . . . . 10
Section 114. Act of Holders when Securities are
Denominated in Different Currencies . . . . 10
Section 115. Monies of Different Currencies to be
Segregated . . . . . . . . . . . . . . . . . 10
Section 116. Payment to be in Proper Currency . . . . . . 11
ARTICLE TWO
Security Forms
Section 201. Forms Generally . . . . . . . . . . . . . . 11
Section 202. Form of Face of Security . . . . . . . . . . 12
Section 203. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . 14
Section 204. Form of Reverse of Security . . . . . . . . 14
ii
ARTICLE THREE
The Securities
Section 301. Title and Terms . . . . . . . . . . . . . . 17
Section 302. Denominations . . . . . . . . . . . . . . . 19
Section 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . 19
Section 304. Temporary Securities . . . . . . . . . . . . 21
Section 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . 21
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . 23
Section 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . 23
Section 308. Persons Deemed Owners . . . . . . . . . . . 24
Section 309. Cancellation . . . . . . . . . . . . . . . . 25
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture . . 25
Section 402. Application of Trust Money . . . . . . . . . 26
ARTICLE FIVE
Remedies
Section 501. Events of Default . . . . . . . . . . . . . 26
Section 502. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . 27
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . 29
Section 504. Trustee May File Proofs of Claim . . . . . . 29
Section 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . 30
Section 506. Application of Money Collected . . . . . . . 30
Section 507. Limitation on Suits . . . . . . . . . . . . 31
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . 31
Section 509. Restoration of Rights and Remedies . . . . . 32
Section 510. Rights and Remedies Cumulative . . . . . . . 32
Section 511. Delay or Omission Not Waiver . . . . . . . . 32
Section 512. Control by Holders . . . . . . . . . . . . . 32
Section 513. Waiver of Past Defaults . . . . . . . . . . 32
Section 514. Undertaking for Costs . . . . . . . . . . . 33
Section 515. Waiver of Stay or Extension Laws . . . . . . 33
Section 516. Exemption from Individual Liability . . . . 33
iii
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities . . . . 34
Section 602. Notice of Defaults . . . . . . . . . . . . . 35
Section 603. Certain Rights of Trustee . . . . . . . . . 35
Section 604. Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . . . 36
Section 605. May Hold Securities . . . . . . . . . . . . 36
Section 606. Money Held in Trust . . . . . . . . . . . . 36
Section 607. Compensation and Reimbursement . . . . . . . 36
Section 608. Disqualification; Conflicting Interests . . 37
Section 609. Corporate Trustee Required; Eligibility . . 37
Section 610. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . . . . 37
Section 611. Acceptance of Appointment by Successor . . . 39
Section 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . 40
ARTICLE SEVEN
Holders' Lists and Reports By Trustee and Company
Section 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . 40
Section 702. Preservation of Information; Communications
to Holders . . . . . . . . . . . . . . . . . 40
Section 703. Reports by Trustee . . . . . . . . . . . . . 41
Section 704. Reports by Company . . . . . . . . . . . . . 41
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc., only on
Certain Terms . . . . . . . . . . . . . . . 42
Section 802. Successor Corporation Substituted . . . . . 43
Section 803. Evidence to be Furnished Trustee . . . . . . 43
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures without Consent
of Holders . . . . . . . . . . . . . . . . . 43
Section 902. Supplemental Indentures with Consent
of Holders . . . . . . . . . . . . . . . . . 44
Section 903. Execution of Supplemental Indentures . . . . 45
Section 904. Effect of Supplemental Indentures . . . . . 45
Section 905. Conformity with Trust Indenture Act . . . . 45
Section 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . 45
iv
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest . 45
Section 1002. Maintenance of Office or Agency . . . . . . 45
Section 1003. Money for Security Payments to be Held in
Trust; Appointment of Paying Agent . . . . . 46
Section 1004. Statement as to Default . . . . . . . . . . 47
Section 1005. Corporate Existence . . . . . . . . . . . . 47
Section 1006. Limitation upon Liens . . . . . . . . . . . 47
Section 1007. Sale-Leaseback Transactions Relating
to Principal Plants . . . . . . . . . . . . 49
Section 1008. Limitation Upon Funded Debt of
Restricted Subsidiaries . . . . . . . . . . 51
Section 1009. Maintenance of Insurance . . . . . . . . . . 51
Section 1010. Waiver of Certain Covenants . . . . . . . . 51
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Right of Redemption . . . . . . . . . . . . 52
Section 1102. Applicability of Article . . . . . . . . . . 52
Section 1103. Election to Redeem; Notice to Trustee . . . 52
Section 1104. Selection by Trustee of Securities
to be Redeemed . . . . . . . . . . . . . . . 52
Section 1105. Notice of Redemption . . . . . . . . . . . . 53
Section 1106. Deposit of Redemption Price . . . . . . . . 53
Section 1107. Securities Payable on Redemption Date . . . 53
Section 1108. Securities Redeemed in Part . . . . . . . . 54
ARTICLE TWELVE
Sinking Fund
Section 1201. Sinking Fund Payments . . . . . . . . . . . 54
Section 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . 54
Section 1203. Redemption of Securities for Sinking Fund . 55
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Defeasance . . . . . . . . . . . . . . . . 55
Section 1302. Covenant Defeasance . . . . . . . . . . . . 55
Section 1303. Conditions to Defeasance or
Covenant Defeasance . . . . . . . . . . . . 56
Section 1304. Application of Funds . . . . . . . . . . . 57
Section 1305. Reinstatement . . . . . . . . . . . . . . . 57
Signatures . . . . . . . . . . . . . . . . . . . . . . 58
v
THIS INDENTURE, dated as of ___________, 199_, is between Anheuser-Busch
Companies, Inc., a Delaware corporation (hereinafter called the "Company")
having its principal office at One Busch Place, St. Louis, Missouri 63118, and
____________, a _____________ corporation (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured notes,
debentures or other evidences of indebtedness (collectively, the "Securities"),
to be issued from time to time in one or more series (a "Series") as provided
in this Indenture and as shall be provided, in respect of any Series, in or
pursuant to the Authorizing Resolution hereinafter referred to and in the
indenture supplemental hereto (if any) relating to such Series.
Until the Company otherwise elects as provided herein, Anheuser-Busch,
Incorporated ("ABI"), a Missouri corporation which is a wholly-owned subsidiary
of the Company, will be jointly and severally liable with the Company for
payment of the principal of, and premium, if any, and interest on the
Securities, pursuant to a Supplemental Agreement for each Series, subject to
the limitations set forth in such Supplemental Agreement.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Now Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Securities from time to time by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) the words "herein," "hereof," "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
1
"ABI" means Anheuser-Busch, Incorporated, a Missouri corporation which is
a wholly-owned subsidiary of the Company, and its successors and assigns.
"Act" when used with respect to any Holder has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means the Trustee or other Person designated by the
Company from time to time, on written notice to the Trustee, to authenticate
and deliver Securities of one or more Series pursuant to Section 303.
"Authorizing Resolution" means a Board Resolution providing for the
issuance of a Series of Securities, which is to be delivered to the Trustee
pursuant to Section 303 hereof.
"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 Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the city in which the
Corporate Trust Office is located are authorized or obligated by law or
executive order to be closed.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman or Vice
Chairman of the Board, the President, a Vice President (any reference to a Vice
President of the Company herein to be deemed also to include any Vice President
of the Company designated by a number or a word or words added before or after
such title) or the Treasurer of the Company, and also by an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary, and delivered to the Trustee and to the Authenticating
Agent, if any, in respect of the Series to which the Company Order shall
relate.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Indenture is
located at ______________________________________________, Attention:
______________________________________.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to any Securities of any Series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have
2
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary", as used with respect to the Securities of any such Series, shall
mean or include the Depositary with respect to the Global Securities of that
Series.
"Extendible Securities" means Securities of any Series issued hereunder
the final maturity of which is extendible for a stated period of time, as shall
be provided in, or pursuant to, the Authorizing Resolution and supplemental
indenture (if any) relating to such Series.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all indebtedness for money borrowed, including
purchase money indebtedness, having a maturity of more than twelve months from
the date as of which the amount thereof is to be determined or having a
maturity of less than twelve months but by its terms being renewable or
extendible beyond twelve months from such date at the option of the borrower,
subject only to conditions which the borrower is then capable of fulfilling,
and direct guarantees of such indebtedness for money borrowed of other Persons;
provided, that Funded Debt shall not include:
(i) Any indebtedness of a Person, evidence of which is held in
treasury by such Person; or
(ii) Any indebtedness with respect to which there shall have
been deposited with a depository (or set aside and segregated by the
obligor if permitted by the instrument creating such indebtedness),
in trust, on or prior to maturity, funds sufficient to pay such
indebtedness; or
(iii) Any amount representing capitalized lease obligations;
or
(iv) Any indirect guarantees or other contingent obligations in
respect of indebtedness of other Persons, including agreements,
contingent or otherwise, with such other Persons or with third
persons with respect to, or to permit or assure the payment of,
obligations of such other Persons, including, without limitation,
agreements to purchase or repurchase obligations of such other
Persons, agreements to advance or supply funds to or to invest in
such other Persons, or agreements to pay for property, products or
services of such other Persons (whether or not conveyed, delivered or
rendered), and any through-put, take-or-pay, keep-well, make-whole or
maintenance of working capital or earnings or similar agreements; or
(v) Any guarantees with respect to lease or other similar
periodic payments to be made by other Persons.
"Global Security" means a registered Security evidencing all or part of a
Series of Securities, issued to the Depositary for such Series in accordance
with Section 303, and bearing the legend prescribed in Section 303.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the forms and terms of particular Series of Securities established as
contemplated hereunder.
"Interest" means, when used with respect to non-interest-bearing
Securities, interest payable after Maturity.
3
"Interest Payment Date" means, for any Series or Issue of Securities
issued and outstanding hereunder, the date or dates in each year on which any
interest on such Series is paid or made available for payment.
"Issue" means, with respect to any Series, Securities of such Series
having the same Original Issue Date, the same Maturity Date and the same
interest rate and other payment terms, except as to amount of principal.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Maturity Date" means the date specified in each Security on which the
principal thereof is due and payable in full.
"Net Tangible Assets" means the total assets of the Company and its
Restricted Subsidiaries (including, without limitation, any net investment in
Unrestricted Subsidiaries) after deducting therefrom (a) all current
liabilities (excluding any thereof constituting Funded Debt by reason of being
renewable or extendible) and (b) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense, organization and developmental
expenses and other like segregated intangibles, all as computed by the Company
and its Restricted Subsidiaries in accordance with generally accepted
accounting principles as of a date within 90 days of the date as of which the
determination is being made; provided, that any items constituting deferred
income taxes, deferred investment tax credit or other similar items shall not
be taken into account as a liability or as a deduction from or adjustment to
total assets.
"Officers' Certificate" means a certificate signed by the Chairman or Vice
Chairman of the Board, or the President, a Vice President (any reference to a
Vice President of the Company to be deemed also to include any Vice President
of the Company designated by a number or a word or words added before or after
such title) or the Treasurer of the Company, and also by an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means an opinion in writing signed by legal counsel,
who may be an employee of or of counsel to the Company or other counsel, and
who shall be acceptable to the Trustee. Each such opinion shall include the
statements provided for in Section 102, if and to the extent required by the
provisions thereof.
"Original Issue Date" means the date on which a Security is issued to the
original purchaser thereof, as specified in such Security.
"Original Issue Discount Securities" means Securities which provide for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 502.
"Outstanding" when used with respect to Securities, or Securities of any
particular Series or Issue, means, as of the date of determination, all such
Securities theretofore authenticated and delivered under this Indenture,
except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities, provided that,
if such Securities are to be redeemed, notice of such redemption has
been duly given
4
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount that would be due and payable
as of the date of determination upon a declaration of acceleration thereof
pursuant to Section 502 and (b) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor.
"Paying Agent" means, with respect to any Series of Securities, any Person
authorized by the Company to pay the principal of (and premium, if any) or
interest on any such Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost,
destroyed or stolen Security.
"Principal Plant" means any brewery, or any manufacturing, processing or
packaging plant, now owned or hereafter acquired by the Company or any
Subsidiary, but shall not include any (a) brewery or any manufacturing,
processing or packaging plant of the Company or any Subsidiary which the
Company shall by Board Resolution have determined is not of material importance
to the total business conducted by the Company and its Subsidiaries or (b) any
plant which the Company shall by Board Resolution have determined is used
primarily for transportation, marketing or warehousing, any such determination
to be effective upon the date specified in the applicable Board Resolution.
"Redeemable Securities" means Securities of any Series or Issue which may
be redeemed, at the option of the Company, prior to the Stated Maturity
thereof, on the terms specified in or pursuant to the Authorizing Resolution
relating to such Series or Issue and in accordance with Article Eleven herein.
"Redemption Date" when used with respect to any Security of any Series or
Issue to be redeemed means the date fixed for such redemption by or pursuant to
the provisions of such Security, this Indenture and the Authorizing Resolution
and supplemental indenture (if any) relating to such Security.
"Redemption Price" when used with respect to any Security of any Series or
Issue to be redeemed means the price at which it is to be redeemed pursuant to
the provisions of such
5
Security, this Indenture and the Authorizing Resolution and supplemental
indenture (if any) relating to such Security.
"Regular Record Date" means, for the interest payable on any Interest
Payment Date in respect of any Series or Issue of Securities, except as
provided in, or pursuant to, the Authorizing Resolution and supplemental
indenture (if any) relating thereto, the fifteenth day (whether or not a
Business Day) of the calendar month next preceding the month during which such
Interest Payment Date occurs.
"Responsible Officer" when used with respect to the Trustee or an
Authenticating Agent means the Chairman or Vice Chairman of the Board of
Directors, the Chairman or Vice Chairman of the Executive Committee of the
Board of Directors, the President, any Vice President (whether or not
designated by a number or a word or words added before or after the title "Vice
President"), the Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer, the Cashier, any Assistant Cashier, any Senior Trust
Officer or Trust Officer, the Controller and any Assistant Controller or any
other officer of the Trustee or such Authenticating Agent customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means (i) any Subsidiary which owns or operates a
Principal Plant, except any Subsidiary incorporated, or the principal place of
business of which is located, outside the present fifty states of the United
States of America and the District of Columbia and (ii) any other Subsidiary
which the Company, by Board Resolution, shall elect to be treated as a
Restricted Subsidiary, until such time as the Company may, by further Board
Resolution, elect that such Subsidiary shall no longer be a Restricted
Subsidiary, successive such elections being permitted without restriction. Any
such election shall be effective as of the date specified in the applicable
Board Resolution.
"Securities" means the securities of the Company to be issued from time to
time hereunder.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Series" means, with respect to Securities issued hereunder, the
Securities issued pursuant to any particular Authorizing Resolution, subject to
the right of the Board of Directors to specify in such Authorizing Resolution
that such Securities shall constitute more than one Series.
"Sinking Fund" means, with respect to any Sinking Fund Securities, a
sinking fund provided for in Article Twelve.
"Sinking Fund Securities" means Securities of any Series or Issue which
are required to be redeemed from time to time prior to the Stated Maturity
thereof in whole or in part under a Sinking Fund, on the terms specified in the
Authorizing Resolution relating to such Series or Issue and in accordance with
Article Twelve herein.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means any corporation of which more than 50% of the issued
and outstanding stock entitled to vote for the election of directors (otherwise
than by reason of default in
6
dividends or other contingency) is at the time owned directly or indirectly by
the Company or a Subsidiary or Subsidiaries or by the Company and a Subsidiary
or Subsidiaries.
"Supplemental Agreement" means an agreement substantially in the form
attached hereto as Exhibit A, which is to be executed by ABI and the Company
and delivered to the Trustee pursuant to Section 303(3) in connection with the
issuance of each Series of Securities (unless the Company otherwise elects as
referred to in said Section), pursuant to which ABI shall be jointly and
severally liable with the Company for payment of the principal of, and premium,
if any, and interest on such Securities, subject to certain limitations and
subject to the right of the Company to terminate such liability of ABI as
provided in such form of Supplemental Agreement.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean and include the Person, or each Person, who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any Series shall mean the Trustee with respect to
Securities of that Series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this instrument was executed,
except as provided in Section 905.
"Unrestricted Subsidiary" means any Subsidiary which is not a Restricted
Subsidiary.
"Yield to Maturity" means, with respect to any Series or Issue of
Securities, the yield to maturity thereof, calculated at the time of issuance
thereof, or, if applicable, at the most recent redetermination of interest
thereon, and calculated in accordance with accepted financial practice.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than certificates provided
pursuant to Section 1004) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
7
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company, stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver, vote or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee, and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee
may determine.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind the Holder of
every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done or suffered to be done
by the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(e) The record date for determining which Holders may act hereunder is
the later of the 30th day prior to the first solicitation of Holders relating
to such act or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 701 prior to such first solicitation, provided,
that so long as the Trustee is the Security Registrar, such record date shall
be the 30th day prior to such first solicitation.
8
Section 105. Notices, etc., to Trustee and Company.
Except as provided in Section 501, any request, demand, authorization,
direction, notice, consent, or waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust
Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (except as provided in Section
501 (4)), if in writing and mailed, first class postage prepaid, to
the Company, to the attention of the Secretary, and a copy thereof to
the attention of the Treasurer, addressed to it at the address of the
principal office of the Company specified in the first paragraph of
this instrument or at such other address as shall have been furnished
in writing to the Trustee by the Company for this purpose.
Section 106. Notices to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears on the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision which is required or deemed to be included in this Indenture by any
of the provisions of TIA, such provision so required or deemed to be included
herein shall control.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
9
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto, any Paying Agent and their
successors hereunder and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture shall be construed in accordance with and governed by the
laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, any Redemption Date, or the
Stated Maturity of any Security, or any date on which any Defaulted Interest is
proposed to be paid, shall not be a Business Day, then (notwithstanding any
other provision of this Indenture) payment of interest or principal (and
premium, if any) need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or Redemption Date, at the Stated Maturity, or on the
date on which the Defaulted Interest is proposed to be paid, and no interest
shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity or date for the payment of Defaulted
Interest, as the case may be.
Section 114. Act of Holders when Securities are Denominated in Different
Currencies.
Whenever any action or Act is to be taken hereunder by the Holders of two
or more Series or Issues of Securities denominated in different currencies,
then, for the purposes of determining the principal amount of Securities held
by such Holders, the aggregate principal amount of the Securities denominated
in a currency other than United States dollars shall be deemed to be that
amount of United States dollars that could be obtained for such principal
amount on the basis of the spot rate of exchange for such currency as
determined by the Company or by an authorized exchange rate agent and evidenced
to the Trustee by an Officers' Certificate as of the date the taking of such
action or Act by the Holders of the requisite percentage in principal amount of
the Securities is evidenced to the Trustee. An exchange rate agent may be
authorized in advance or from time to time by the Company, and may be the
Trustee or its Affiliate. Any such determination by the Company or by any such
exchange rate agent shall be conclusive and binding on all Holders and the
Trustee, and neither the Company nor such exchange rate agent shall be liable
therefor in the absence of bad faith.
Section 115. Monies of Different Currencies to be Segregated.
The Trustee shall segregate monies, funds, and accounts held by the
Trustee hereunder in one currency from any monies, funds or accounts in any
other currencies, notwithstanding any provision herein which would otherwise
permit the Trustee to commingle such amounts.
10
Section 116. Payment to be in Proper Currency.
Each reference in any Security, or in the Authorizing Resolution relating
thereto, to any currency shall be of the essence. In the case of any Security
denominated in any currency (the "Required Currency") other than United States
dollars, except as otherwise provided therein or in the related Authorizing
Resolution, the obligation of the Company to make any payment of principal,
premium or interest thereon shall not be discharged or satisfied by any tender
by the Company, or recovery by the Trustee, in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the Trustee timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is in a currency other
than the Required Currency, the Trustee may take such actions as it considers
appropriate to exchange such currency for the Required Currency. The costs and
risks of any such exchange, including without limitation the risks of delay and
exchange rate fluctuation, shall be borne by the Company, the Company shall
remain fully liable for any shortfall or delinquency in the full amount of
Required Currency then due and payable, and in no circumstances shall the
Trustee be liable therefor. The Company hereby waives any defense of payment
based upon any such tender or recovery which is not in the Required Currency,
or which, when exchanged for the Required Currency by the Trustee, is less than
the full amount of Required Currency then due and payable.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each Series and Issue and the certificate of
authentication thereon shall be in substantially the forms set forth in this
Article or in such other forms, including the form of one or more Global
Securities, as shall be specified in, or pursuant to, the Authorizing
Resolution or in the indenture supplemental hereto (if any) relating to such
Series or Issue, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture or the said
Authorizing Resolution or supplemental indenture, and they may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange, or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The definitive Securities of each Series shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, or, if they shall
not be listed on any securities exchange, in any other manner consistent
herewith, all as shall be determined by the officers executing such Securities,
as evidenced by their execution of such Securities.
11
Section 202. Form of Face of Security.
[The following is to be included if the Security is an Original Issue
Discount Security:]
[FOR PURPOSES OF SECTION 1273 OF THE UNITED STATES INTERNAL
REVENUE CODE OF 1986, AS AMENDED, THE ISSUE PRICE OF THIS SECURITY IS
% OF ITS PRINCIPAL AMOUNT AND ITS ISSUE DATE IS ,
19 .]
ANHEUSER-BUSCH COMPANIES, INC.
[title of Security]
Rate of Interest Maturity Date Original Issue Date
..................... No.....................
Anheuser-Busch Companies, Inc., a Delaware corporation
(hereinafter called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to , or
registered assigns, the sum of on the Maturity Date shown
above, and to pay interest thereon, at the annual rate of interest
shown above, from the Original Issue Date shown above or from the
most recent Interest Payment Date (as hereinafter defined) to which
interest has been paid or duly provided for, payable semi-annually on
and of each year and at maturity (an
"Interest Payment Date"), commencing on the first such date after the
Original Issue Date, except that if the Original Issue Date is on or
after a Regular Record Date (which term, as well as all other
capitalized terms used herein, shall have the meanings assigned in
the Indenture referred to on the reverse hereof unless otherwise
indicated) but before the next Interest Payment Date, interest
payments will commence on the second Interest Payment Date following
the Original Issue Date.
[reference to currency[ies] of payment and currency exchange
arrangements, if applicable]
The interest payable hereon, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in said
Indenture, be paid to the Person in whose name this [name of
Security] (or one or more Predecessor [name of Series]) is registered
at the close of business on the Regular Record Date for such
interest, which shall be the fifteenth day of the calendar month
(whether or not a Business Day) next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holder on such
Regular Record Date, and may be paid to the Person in whose name this
[name of Security] (or one or more Predecessor [name of Series]) is
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of [name of Series] not less than
10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the [name of Series] may be listed,
and upon such notice as may be required by such exchange, all as more
fully provided in such Indenture. Payment of the principal of (and
premium, if any) and interest on this [name of Security] will be made
at the office or agency of the Company maintained for that purpose in
[The Borough of Manhattan, The City of New York or other place of
payment], in
12
[reference to United States dollars or other currency of payment];
provided, however, that payment of interest, other than interest due on a
Maturity Date, may be made at the option of the Company by check mailed to
the address of the Person entitled thereto as such address shall appear on
the Security Register. [Include the following, if applicable:] Payments on
the Maturity Date will be made in immediately available funds against
presentment of this [name of Security].
[The following paragraph to be included if a Supplemental
Agreement is delivered pursuant to Section 303]
Anheuser-Busch, Incorporated ("ABI"), a Missouri corporation
which is a wholly-owned subsidiary of the Company, pursuant to a
Supplemental Agreement relating to the [name of Series], is jointly
and severally liable with the Company for payment of the principal
of, premium, if any, and interest on the [name of Series] when and as
the same shall become due and payable, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise,
according to the terms of the [name of Series] and of the Indenture,
but subject to the limitations set forth in such Supplemental
Agreement, which permits the Company to elect to terminate such
liability of ABI on the terms provided therein.
Reference is hereby made to the further provisions of this [name
of Security] set forth on the reverse hereof which further provisions
shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon has been
executed by _____________, the Trustee under the Indenture, or its
successor thereunder, or by another Authenticating Agent appointed
pursuant to the Indenture, by the manual signature of one of its
authorized officers, this [name of Security] shall not be entitled to
any benefit under the Indenture, nor be valid or obligatory for any
purpose.
In Witness Whereof, The Company has caused this instrument to be
duly executed under its corporate seal.
Dated ___________________
Anheuser-Busch Companies, Inc.
By _______________________________
[title of Company Officer]
Attest:
________________________________
[Assistant] Secretary
13
Section 203. Form of Trustee's Certificate of Authentication.
This is one of the [name of Series] referred to in the within-
mentioned Indenture.
_____________,
as Trustee
[reference to Authenticating Agent, if any]
By _____________________________________
Authorized Officer
Section 204. Form of Reverse of Security.
This [name of Security] is one of a duly authorized issue of
[name of Securities] of the Company designated as its [title of
Series] (herein called the "[name of Series]"), issued and to be
issued under an indenture dated as of , 199_ (herein
called the "Indenture"), between the Company and _____________, as
Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), and under [reference to
Authorizing Resolution and/or supplemental indenture relating to the
Series] to which Indenture, [reference to Authorizing Resolution
and/or supplemental indenture] and all [further] indentures
supplemental thereto reference is hereby made for the definition of
certain terms used herein, for a statement of the respective rights
thereunder of the Company, the Trustee and the Holders of the [name
of Series], and for the terms upon which the [name of Series] are,
and are to be, authenticated and delivered. This [name of Series] is
one of a series of securities issued or to be issued by the Company
under the Indenture, limited in aggregate principal amount to
. The Indenture provides that the Securities of the Company
referred to therein ("Securities"), including the [name of Series],
may be issued in one or more Series, each of which may consist of one
or more Issues, which different Series and Issues may be issued in
such principal amounts and on such terms (including, but not limited
to, terms relating to interest rate or rates, provisions for
determining such interest rate or rates and adjustments thereto,
maturity, redemption (optional and mandatory), sinking fund,
covenants and Events of Default) as may be provided in or pursuant to
the Authorizing Resolutions (as defined in the Indenture) relating to
the several Series.
[The following to be included if the Securities are not
redeemable prior to maturity.]
This [name of Security] may not be redeemed prior to its
Maturity Date.
[The following paragraph, or other appropriate redemption
provisions, to be included if the Securities are Redeemable
Securities:]
The [name of Series] are subject to redemption upon not less
than 30 nor more than 60 days' notice by mail, [the following clause
to be included if there is a Sinking Fund:] [(1) on [annual Sinking
Fund Redemption Date] in each year commencing with the year [year of
first Sinking Fund payment] through operation of the Sinking Fund at
a Redemption Price equal to their principal amount and (2)] [at any
time] in whole or in part, at the election of the Company at a
Redemption Price equal to the
14
percentage set forth below of the principal amount to be redeemed for
the respective twelve-month periods beginning [
] of the years indicated:
[Schedule of Redemption Prices]
and thereafter at 100% of the principal amount thereof, together in
each case with accrued interest to the Redemption Date.
[The following paragraph, or other appropriate Sinking Fund
provision, to be included if there is a Sinking Fund for the Series:]
The Sinking Fund provides for the redemption on [first Sinking
Fund Redemption Date] and on [annual Sinking Fund Redemption Date] in
each year thereafter through [year of final Sinking Fund date] of not
less than [minimum required Sinking Fund redemption amount] principal
amount nor more than [maximum permitted Sinking Fund redemption
amount] principal amount of [name of Series]. [name of Series]
purchased, acquired or redeemed by the Company otherwise than by
redemption through the Sinking Fund may be credited against
subsequent Sinking Fund requirements.
[The following paragraph to be included if the Securities are
Redeemable Securities or Sinking Fund Securities:]
In the event of redemption of this [name of Security] in part
only, a new [name of Security] or [name of Series] for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon
the surrender hereof.
[The following paragraph to be included if the Securities are
not Original Issue Discount Securities:]
If an Event of Default, as defined in the Indenture and in the
Authorizing Resolution and supplemental indenture (if any) relating
to the [name of Series] (if there shall be any additional Events of
Default specified in respect of the [name of Series]), shall occur
and be continuing, the principal of all the [name of Series] may be
declared due and payable in the manner and with the effect provided
in the Indenture.
[If the Securities are Original Issue Discount Securities,
insert schedule as to amounts which are payable on acceleration under
Section 502 and provable in bankruptcy under Section 504(i) from time
to time.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Company and the rights of the Holders of the
[name of Series] under the Indenture at any time by the Company with
the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities affected thereby, voting as a
single class (which may include the [name of Series]), at the time
Outstanding, as defined in the Indenture. The Indenture also
contains provisions permitting the Holders of not less than a
majority in principal amount of the Securities at the time
Outstanding of all Series affected thereby to waive certain past
defaults under the Indenture and their consequences, and permitting
the Holders of not less than a majority in principal amount of the
Securities at the time Outstanding of all Series entitled to the
benefits thereof to waive compliance with certain covenants under the
Indenture. Any such
15
consent or waiver by the Holder of this [name of Security] shall be
conclusive and binding upon such Holder and upon all future Holders of
this [name of Security] and of any [name of Security] issued on transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such consent or waiver is made upon this [name of Security].
No reference herein to the Indenture and no provision of this
[name of Security] or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to
pay the principal of (and premium, if any) and interest on this [name
of Security] at the times, place, and rate, and in the currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this [name of Security] is
registrable on the Security Register of the Company, upon surrender
of this [name of Security] for registration of transfer at the office
or agency of the Company provided for that purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed
by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new [name of Series], of authorized
denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The [name of Series] are issuable only as registered [name of
Series] without coupons in denominations of [currency and minimum
denomination] and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, [name
of Series] are exchangeable for a like aggregate principal amount of
[name of Series] of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment for registration of transfer of this
[name of Security], the Company, the Trustee and any agent of the
Company may treat the Person in whose name this [name of Security] is
registered as the owner hereof for all purposes whether or not this
[name of Security] be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
[Reference to Foreign Currencies]
At the election of the Company, the obligations of the Company
(a) as to the [name of Series] and under the Indenture with respect
to the [name of Series] (except for certain obligations relating to
transfers or exchanges) or (b) as to the [name of Series] under
certain provisions of the Indenture, may be satisfied and discharged
upon the satisfaction of certain conditions, including the deposit
with the Trustee of money or U.S. Government Obligations (as defined
in the Indenture) sufficient for payment of the principal, premium,
if any, and interest at or before the Stated Maturity (as defined in
the Indenture) on the [name of Series].
As provided in the Indenture and subject to certain limitations
therein set forth, the holder of this [name of Security] shall not
have the right to institute any proceeding with respect to the
Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default
with respect to the
16
[name of Series], the Holders of not less than 25% in principal amount of
the Outstanding Securities of the Series or Issue in respect of which the
Event of Default has occurred shall have made written request to the
Trustee to institute proceedings, as Trustee, in respect of such Event of
Default and shall have offered the Trustee reasonable indemnity and the
Trustee shall not have received from the Holders of a majority in
principal amount of the Outstanding Securities of such Series or Issue a
direction inconsistent with such request, and the Trustee shall have
failed to institute any such proceeding for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to
any suit instituted by the Holder of this [name of Security] for the
enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this [name of Security], or for
any claim based hereon, or otherwise in respect hereof, or based on
or in respect of the Indenture or any indenture supplemental thereto,
against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
ARTICLE THREE
The Securities
Section 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more Series and Issues. The terms
of each Series and Issue shall be as provided in an Authorizing Resolution or
supplemental indenture or shall be determined in the manner specified therein.
The terms to be specified in respect of each Series or Issue in the Authorizing
Resolution or supplemental indenture, or by such person and/or procedures as
shall be provided therein, shall include the following:
(1) The title of the Securities of such Series, which shall
distinguish such Series from all other Series;
(2) The aggregate principal amount of the Securities of such
Series which may be authenticated and delivered under this Indenture
(except for Securities of such Series authenticated and delivered
upon transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 304, 305, 306, 906 or 1108);
(3) The date or dates on which the principal and premium, if
any, of the Securities of such Series or Issue is payable, and, if
the Series shall be Extendible Securities, the terms on which the
Company or any other Person shall have the option to extend the
Maturity of such Securities and the rights, if any, of the Holders to
require payment of the Securities;
(4) The rate or rates at which the Securities of such Series or
Issue shall bear interest, if any (whether floating or fixed), the
provisions, if any, for determining such interest rate or rates and
adjustments thereto, the date or dates from which such interest shall
accrue, the Interest Payment Dates therefor and the Regular Record
Dates (if different
17
from those provided in the form of Security herein set forth) for the
determination of Holders of the Securities of such Series or Issue to whom
interest is payable;
(5) The place or places where the principal of, or premium, if
any, and interest on Securities of such Series or Issue shall be
payable (if other than as provided in Section 1002);
(6) The price or prices at which, the period or periods within
which and the terms and conditions upon which the Securities of such
Series or Issue may be redeemed, in whole or in part, at the option
of the Company, pursuant to a Sinking Fund or otherwise;
(7) The obligation, if any, of the Company to redeem, purchase
or repay Securities of such Series or Issue, in whole or in part,
pursuant to a Sinking Fund or otherwise or at the option of a Holder
thereof, and the price or prices at which, the period or periods
within which and the terms and conditions upon which such redemption,
purchase or repayment shall be made;
(8) Any Events of Default with respect to the Securities of
such Series or Issue which may be in addition to those provided
herein, and any covenants or obligations of the Company to the
Holders of the Securities of such Series or Issue in addition to
those set forth herein;
(9) If less than 100% of the principal amount of the Securities
of such Series or Issue is payable on acceleration under Section 502
or provable in bankruptcy under Section 504(i) at any time, a
schedule of or the manner of computing the amounts which are so
payable and provable from time to time;
(10) The form of the Securities of such Series (which may be,
but which need not be, consistent with the form set forth in Article
Two hereof), including whether the Securities of the Series shall be
issued in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such
Global Security or Securities;
(11) If other than United States dollars, the currency(ies) in
which payment of the principal of (and premium, if any) or interest,
if any, on the Securities of that Series or Issue shall be payable;
(12) If the principal of (and premium, if any) or interest, if
any, on the Securities of that Series or Issue are to be payable, at
the election of the Company or a Holder thereof, in a currency or
currencies other than that in which the Securities are stated to be
payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(13) If the amount of payments of principal of (and premium, if
any) or interest, if any, on the Securities of the Series or Issue
may be determined with reference to an index based on a currency or
currencies other than that in which the Securities are stated to be
payable, the manner in which such amounts shall be determined; and
(14) Any other terms of the Securities of such Series or Issue;
provided, that such other terms shall not be inconsistent with any
express terms of this Indenture or in conflict with any express terms
of any other Series or Issue of Securities which shall be issued and
Outstanding.
All Securities of any one Series or Issue shall be substantially identical
in form except as to denomination and except as may be otherwise provided in
and pursuant to the Authorizing Resolutions or supplemental indenture (if any)
relating thereto.
18
Section 302. Denominations.
Unless otherwise provided by Section 301 in connection with the issuance
of Global Securities, the Securities of each Series or Issue may be issued only
in registered form without coupons in denominations of $1,000 and any integral
multiple thereof, or in such other currencies or denominations as may be
specified in, or pursuant to, the Authorizing Resolution relating to the
Series.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
or Vice Chairman of the Board, its President, one of its Vice Presidents or its
Treasurer under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any Series executed by the
Company to the Authenticating Agent, together with a Company Order for the
authentication and delivery of such Securities. The Company Order may provide
that the Securities which are the subject thereof shall be authenticated and
delivered by the Authenticating Agent upon the telephonic, written or other
order of Persons designated in the Company Order, and that such Persons are
authorized to specify the terms and conditions of such Securities, to the
extent permitted by the Authorizing Resolution relating thereto. The Trustee
shall execute and deliver the supplemental indenture (if any) and the
Supplemental Agreement (if any) relating to said Securities and the
Authenticating Agent shall authenticate and deliver said Securities as
specified in such Company Order; provided, that, prior to authentication and
delivery of the first Securities of any Series, the Trustee and the
Authenticating Agent shall have received:
(1) A copy of the Authorizing Resolution, with a copy of the
form of Security approved thereby attached thereto;
(2) A supplemental indenture in respect of the issuance of the
Series, if called for by the terms of the Authorizing Resolution in
respect thereof, executed on behalf of the Company;
(3) A Supplemental Agreement relating to the Series, executed
on behalf of ABI and the Company, unless the Company shall
theretofore have elected, pursuant to the terms specified in the form
of Supplemental Agreement, to terminate the obligations of ABI in
respect of the Securities;
(4) An Officers' Certificate to the effect that the Securities
of such Series comply or will comply with the requirements of this
Indenture and the said Authorizing Resolution and supplemental
indenture (if any);
(5) An Opinion of Counsel (a) to the effect that (i) the
Securities of such Series, the Authorizing Resolution, the
Supplemental Agreement (if any) and the supplemental indenture (if
any) relating thereto comply or will comply with the requirements of
this Indenture, (ii) the Securities of such Series, when
authenticated and delivered by the Authenticating Agent in accordance
with the said Company Order, will constitute valid and binding
obligations of the Company and (if applicable) ABI enforceable in
accordance with their terms, subject to (A) bankruptcy and other laws
affecting creditors'
19
rights generally as in effect from time to time, (B) limitations of
generally applicable equitable principles, (C) any limitations or
uncertainty, under the constitution and laws of the State of
Missouri, on the enforceability of the obligations of ABI (if any) in
respect of the Securities and (D) other exceptions acceptable to the
Trustee and its counsel; and (b) relating to such other matters as
may reasonably be requested by the Trustee or its counsel.
(6) If the Securities to be issued are Original Issue Discount
Securities, an Officers' Certificate setting forth the Yield to
Maturity for the Securities or other information sufficient to
compute amounts due on acceleration, or specifying the manner in
which such amounts are to be determined, provided that such Yield to
Maturity and other facts are not specified in the form of the
Securities.
If the Company shall establish pursuant to Section 301 that the Securities
of a Series are to be issued in whole or in part in the form of one or more
Global Securities, then the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to such Series,
authenticate and deliver one or more Global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an
aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such Series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the Depositary for such Global Security
of Securities or the nominee of such Depositary, (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instruction and
(iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary."
Each Depositary designated pursuant to Section 301 for a Global Security
in registered form must, at the time of its designation and at all times while
it serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation.
Subject to Section 601 hereof, the Authenticating Agent and the Trustee
shall be fully protected in relying upon the documents delivered to it as
provided above in connection with the issuance of any Series of Securities.
The Authenticating Agent shall have the right to decline to authenticate
and deliver any Securities under this Section if the Authenticating Agent,
being advised by counsel, determines that such action may not lawfully be taken
or if the Authenticating Agent in good faith by a committee of its Responsible
Officers shall determine that such action would expose the Authenticating Agent
to liability to Holders of previously issued and Outstanding Securities.
Each Security shall be dated the date of its authentication unless
otherwise specified in the Authorizing Resolution relating thereto.
No Security shall be entitled to any benefit under this Indenture, or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Authenticating Agent by the manual signature of one of its
authorized signatories, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
20
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any Series or Issue,
the Company may execute, and upon compliance with the requirements of Section
303 the Authenticating Agent shall authenticate and deliver, temporary
Securities, which may be printed, lithographed, typewritten, photocopied or
otherwise produced, in any denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of such Securities.
If temporary Securities of any Series or Issue are issued, the Company
shall thereafter cause definitive Securities for such Series or Issue to be
prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities, at the office or agency
of the Company provided for that purpose, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities the Company
shall execute and the Authenticating Agent shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged, the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept a register at one of its offices or
agencies maintained pursuant to Section 1002 (herein referred to as the
"Security Register") in which, subject to such reasonable regulations as the
Company may prescribe, the Company shall provide for the registration of
Securities and the registration of transfers of Securities. At all reasonable
times the Security Register shall be open for inspection by the Trustee. The
Security Register shall be kept at the said office or agency, and said office
or agency is hereby initially appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided. If the
Security Registrar shall not be the Authenticating Agent in respect of any
Series, the Company shall promptly notify the Security Registrar as to the
amounts and terms of each Security of such Series which shall be authenticated
and delivered hereunder, and as to the names in which such Securities shall be
registered.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company provided for that purpose, the Company shall execute,
and the Authenticating Agent shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
Issue and Stated Maturity of a like aggregate principal amount.
Notwithstanding any other provision of this Section, unless and until it
is exchanged in whole or in part for Securities in definitive form, a Global
Security representing all or a portion of the Securities of a Series may not be
transferred except as a whole by the Depositary for such Series or to a nominee
of such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any such nominee to
a successor Depositary for such Series or a nominee of such successor
Depositary.
At the option of the Holder, Securities of any Issue (other than a Global
Security, except as set forth below) may be exchanged for other Securities of
the same Issue of any authorized denominations, of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Authenticating Agent shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
21
If at any time the Depositary for any Securities of a Series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such Series or if at any time the Depositary for the Securities
of such Series shall no longer be eligible under Section 303, the Company shall
appoint a successor Depositary eligible under Section 303, with respect to the
Securities of such Series. If a successor Depositary eligible under Section
303 for the Securities of such Series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section 301(10) that the
Securities of such Series be represented by one or more Global Securities shall
no longer be effective with respect to the Securities of such Series and the
Company shall execute and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such Series, shall
authenticate and deliver, Securities of such Series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any Series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company shall execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
Series, shall authenticate and deliver, Securities of such Series in definitive
form and in an aggregate principal amount equal to the principal amount of the
Global Security or Securities representing such Series in exchange for such
Global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
Series of Securities represented by a Global Security, the Depositary for such
Global Securities may surrender a Global Security for such Series of Securities
in exchange in whole or in part for Securities of such Series in definitive
form on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and
deliver, without service charge:
(i) to each Person specified by such Depositary a new Security or
Securities of the same Series, of any authorized denomination as requested
by such Person in aggregate principal amount equal to and in exchange for
such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered
pursuant to clause (i) above.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee will authenticate and deliver Securities
in definitive registered form in authorized denominations.
Upon the exchange of a Global Security for Securities in definitive
registered form, such Global Security shall be cancelled by the Trustee or an
agent of the Company or the Trustee. The Trustee or such agent shall deliver
such Securities to or as directed by the Persons in whose names such Securities
are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written
22
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1108 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Security of any Series during a period beginning at the opening
of the day which is 15 Business Days before the day of the mailing of a notice
of redemption of Securities of such Series selected for redemption under
Section 1104 and ending at the close of business on the day of such mailing, or
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not to be redeemed.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and (ii) there is delivered to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Authenticating Agent shall
authenticate and deliver, in exchange for, or in lieu of, any such mutilated,
destroyed, lost or stolen Security, a new Security of like tenor, Issue and
principal amount, bearing a number not assigned to any Security of the same
Series then outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay the indebtedness represented by such
Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of the same Issue duly issued hereunder.
The provisions of this Section are exclusive and (to the extent lawful)
shall preclude all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Interest which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date, on the Securities of any Issue, shall be paid to the
Persons in whose names the Securities (or one or more Predecessor Securities)
are registered at the close of business on the Regular Record Date for such
interest.
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Any interest on any Security of any Issue which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder,
as such, on the Regular Record Date for such payment; and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such Issue and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount of such Defaulted Interest proposed to be paid or shall make
arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such
Issue at his address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the said
Securities (or their respective Predecessor Securities) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of such Series may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment for registration of transfer of any Security, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any), and
(subject to Section 307) interest on, such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
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None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee. All Securities so delivered and any
Securities surrendered directly to the Trustee for any such purpose shall be
promptly cancelled by the Trustee and all Securities of any Series or Issue
delivered to the Trustee for credit against any Sinking Fund payment in respect
of such Series or Issue pursuant to Section 1202 shall be promptly cancelled by
the Trustee. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be destroyed and
certification of their destruction delivered to the Company unless by a Company
Order the Company shall direct that cancelled Securities be returned to it.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for, and except as otherwise provided in the Authorizing
Resolution in respect of any Series), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements satisfactory
to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the
expense, of the Company,
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and the Company, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
(3) the Company has delivered to the Trustee a Company Order
setting forth its election that this Indenture shall be discharged;
and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 shall survive.
Section 402. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for payment of which such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default" wherever used herein means, with respect to any Issue
of Securities, any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body), unless it is either inapplicable to a particular Series or
Issue or it is specifically deleted or modified in the Authorizing Resolution
and/or supplemental indenture (if any) in respect of the Series or Issue, and
any other events which may be specified as Events of Default in the Authorizing
Resolution and/or supplemental indenture (if any) in respect of such Series or
Issue:
(1) default in the payment of any installment of interest upon
any Security of such Issue when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of such Issue at its Maturity, and, in the case
of such a Security that becomes due and payable by the terms of
Article Eleven, continuance of such default for a period of 30 days;
or
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(3) default in the deposit of any Sinking Fund installment in
respect of such Issue, when and as payable by the terms of Section
1201 hereof, and continuance of such default for a period of 30 days;
or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than (a) a covenant
or warranty relating exclusively to another Issue of Securities
issued hereunder and (b) a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Securities of all Issues
Outstanding (or, with respect to any such covenant or agreement which
is not applicable to all Issues of Securities, by the Holders of at
least 25% in aggregate principal amount of the Outstanding Securities
of all Issues to which it is applicable) (in each case voting as a
single class), a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(5) the entry of an order for relief under the United States
federal bankruptcy laws or the entry of any other decree or order by
a court having jurisdiction in the premises adjudging the Company or
ABI a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or ABI under the United
States federal bankruptcy laws or any other applicable federal or
state law, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of the Company or
ABI or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any
such decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company or ABI of a voluntary case
under the United States federal bankruptcy laws, or the institution
by the Company or ABI of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition
or answer or consent seeking reorganization, an arrangement with
creditors or an order for relief under the United States federal
bankruptcy laws or any other applicable federal or state law, or the
consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other official) of the Company or ABI or of any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become
due, or, to the knowledge of the Trustee, the taking of corporate
action by the Company or ABI in furtherance of any such action;
provided, that any event referred to in (5) or (6) above in respect of ABI
shall constitute an Event of Default only if, at the time of determination, ABI
shall continue to be liable in respect of the Securities pursuant to a
Supplemental Agreement.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If any one or more of the Events of Default described in clauses (1), (2)
or (3) of Section 501 with respect to Securities of any Series or Issue shall
happen, then, and in each and every such case, during the continuance of any
such Event of Default, either the Trustee, by notice in writing to the Company,
or the Holders of at least 25% in principal amount of such Securities then
Outstanding, by notice in writing to the Company and to the Trustee, may
declare the principal amount (or, if such Securities are Original Issue
Discount Securities, such portion of
27
the principal amount as may then be payable on acceleration as provided in the
terms thereof) of all such Securities then Outstanding (if not then due and
payable) to be immediately due and payable, and upon any such declaration the
same shall become and be immediately due and payable, anything in this
Indenture or in the Securities contained to the contrary notwithstanding. If
any one or more of the Events of Default described in clause (4) of Section 501
shall happen, then, and in each and every such case, during the continuance of
any such Event of Default, either the Trustee, by notice in writing to the
Company, or the Holders of at least 25% in principal amount of the Securities
of all Issues then Outstanding (or, if such default is not applicable to all
Issues of the Securities, the Holders of at least 25% in principal amount of
the Outstanding Securities of all Issues to which it is applicable) (in each
case voting as a single class), by notice in writing to the Company and to the
Trustee, may declare the principal amount (or, if the Securities of any such
Issues are Original Issue Discount Securities, such portion of the principal
amount as may then be payable on acceleration as provided in the terms of that
Issue) of all the Securities (or all the Securities of such Issues, if such
default is not applicable to all Issues of the Securities) then Outstanding (if
not then due and payable) to be immediately due and payable, and upon any such
declaration the same shall become and be immediately due and payable, anything
in this Indenture or in the Securities contained to the contrary
notwithstanding. If any one or more of the Events of Default described in
clauses (5) or (6) of Section 501 shall happen, then, and in each and every
such case, during the continuance of any such Event of Default, either the
Trustee, by notice in writing to the Company, or the Holders of at least 25% in
principal amount of all the Securities then Outstanding (voting as a single
class), by notice in writing to the Company and to the Trustee, may declare the
principal amount (or, if any Securities are Original Issue Discount Securities,
such portion of the principal amount as may then be payable on acceleration as
provided in the terms thereof) of all the Securities then Outstanding (if not
then due and payable), to be immediately due and payable, and upon any such
declaration the same shall become and be immediately due and payable, anything
in this Indenture or in the Securities contained to the contrary
notwithstanding.
At any time after such a declaration of acceleration has been made with
respect to any Securities and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of such Securities
Outstanding (voting as a single class) by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all such
Securities,
(B) the principal of (and premium, if any, on) such
Securities which have become due otherwise than by such
declaration of acceleration and interest thereon from the
respective due dates thereof at the respective rates borne
by such Securities or, in the case of Original Issue
Discount Securities, at rates equal to the respective
Yields to Maturity thereof, to the extent that payment of
such interest is lawful,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest from
the respective due dates thereof at the respective rates
borne by such Securities or, in the case of Original Issue
Discount Securities, at rates equal to the respective
Yields to Maturity thereof, and
28
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to such Securities,
other than the non-payment of the principal of such Securities which
have become due solely by such acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security when such interest becomes due and payable
and such default continues for the period of grace, if any, provided
for with respect to such payment, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at its Maturity and such default
continues for the period of grace, if any, provided for with respect
to such payment,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of all such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, with interest, to
the extent that payment of such interest is lawful, upon the overdue principal
(and premium, if any) and installments of interest from the due date thereof at
the rate borne by such Securities or, in the case of Original Issue Discount
Securities, at a rate equal to the Yield to Maturity thereof, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to an Issue of Securities occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of such Securities by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or its or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the
29
payment of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount (or, in the
case of Original Issue Discount Securities, such portion of the
principal amount thereof as shall then be provable in bankruptcy as
specified therein) of principal (and premium, if any) and interest
owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any receiver, liquidator, assignee, trustee, custodian, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article with respect
to the Securities of an Issue shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities of such Issue and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 607;
SECOND: In case the principal of the Securities in respect of
which moneys have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such
Issue in default in the order of the maturity of the installments of
such interest, with interest (to the extent that payment of such
interest is lawful and such interest has been collected by the
Trustee) upon the overdue installments of interest at the same rate
as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) applicable to such
30
Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD: In case the principal of the Securities in respect of
which moneys have been collected shall have become and shall be then
due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such Issue for principal and
interest, with (to the extent that payment of such interest is lawful
and such interest has been collected by the Trustee) interest upon
the overdue principal, and upon overdue installments of interest at
the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) applicable to the
Securities of such Issue; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon
the Securities of such Issue, then to the payment of such principal
and interest, without preference or priority of principal over
interest, or of interest over principal, or of any installment of
interest over any other installment of interest, or of any Security
of such Issue over any other Security of such Issue, ratably to the
aggregate of such principal and accrued and unpaid interest.
Section 507. Limitation on Suits.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) the Trustee shall have received written notice from such
Holder of a continuing Event of Default in respect of such
Securities;
(2) the Trustee shall have received a written request from the
Holders of not less than 25% in principal amount of the Outstanding
Securities of the Issue or Series in respect of which the Event of
Default has occurred to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the Holders of
a majority in principal amount of the Outstanding Securities of such
Series or Issue;
it being understood and intended that no one or more Holders of Securities of
any Series or Issue shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Securities of that Series or
Issue, or to obtain or to seek to obtain priority or preference over any other
Holders of Securities of that Series or Issue or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Holders of Securities of such Series or Issue.
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the absolute and unconditional right to receive payment of
the principal of (and premium, if any) and (subject to Section 307) interest on
such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to
31
institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any Series (voting as a single class) shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee in respect of the Securities of such Series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or unduly prejudicial to the rights of
Holders of Securities of all Series not joining in such direction or,
in the opinion of the Trustee, involve the Trustee in personal
liability, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of all Series affected thereby (voting as a single
class) may on behalf of the Holders of all such Securities waive any past
default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
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(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities
of all Series (or, if the matter in issue does not relate to all Series of
Securities, then the Holders of 10% in principal amount of the Outstanding
Securities of all Series to which such issue relates) (treated as a single
class), or to any suit instituted by any Holder of any Securities for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any such Security on or after the respective Stated Maturities expressed
therein (or, in the case of redemption, on or after the Redemption Date).
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 516. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer,
director or employee, as such, past, present or future, of the Company or of
any successor corporation, either directly or through the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations
of the Company, and that no such personal liability whatever shall attach to,
or is or shall be incurred by, the incorporators, stockholders, officers,
directors or employees, as such, of the Company or of any successor
corporation, or any of the foregoing Persons, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such
33
rights and claims against, every such incorporator, stockholder, officer,
director or employee, as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of such
Securities.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities of all Series (voting as a single class)
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
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(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder in respect of
any Issue of Securities, the Trustee shall transmit by mail to all Holders of
the Securities of such Issue, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on any Security or in the payment of any Sinking Fund
installment, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Holders; and
provided, further, that in the case of any default of the character specified
in Section 501(4) no such notice to Holders shall be given until at least 30
days after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default.
Section 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, security or other paper or document believed
by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
35
investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to make a reasonable examination
of the books, records and premises of the Company, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Section
608, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disburse-
ments and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by
36
the Trustee as such, except funds held in trust for the benefit of the Holders
of particular Securities.
Section 608. Disqualification; Conflicting Interests.
The Trustee shall comply with the terms of Section 310 (b) of the TIA.
There shall be excluded from the terms of Section 310(b) of the TIA the
following Indentures and all series of debt securities issuable thereunder:
[to be provided]
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $5,000,000, subject
to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. Neither the Company nor
any Affiliate of the Company shall serve as Trustee hereunder. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
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(b) The Trustee may resign at any time with respect to the Securities of
any Series by giving written notice thereof to the Company. If an instrument
of acceptance by a successor Trustee shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
Series.
(c) The Trustee may be removed at any time with respect to the Securities
of any Series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such Series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee for a Series of Securities shall cease to be
eligible under Section 609 and shall fail to resign after written
request therefor by the Company or by any such Holder of such
Securities, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, unless
the Trustee's duty to resign is stayed as provided in Section 608 of this
Indenture, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more Series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those Series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such Series and that any time there shall be only one Trustee
with respect to the Securities of any particular Series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any Series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such Series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to
the Securities of such Series and supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
Series shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security of such Series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such Series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any Series and each appointment
of a successor Trustee with respect to the Securities of any Series by mailing
written notice of such event by first class mail,
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postage prepaid, to the Holders of Securities of such Series as their names and
addresses appear in the Security Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of such Series and the
address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) Every successor Trustee appointed hereunder with respect to all
Securities shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its lien, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) Series, the Company, the
retiring Trustee, upon payment of its charges, and each successor Trustee with
respect to the Securities of one or more Series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those Series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
Series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those Series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
Series to which the appointment of such successor Trustee relates, subject
nevertheless to its lien, if any, provided for in Section 607.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
ARTICLE SEVEN
Holders' Lists and Reports By Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than March 15 and September 15 in
each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of the Securities
of each Series as of the preceding March 1 or September 1,
respectively, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
Section 702. Preservation Of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities of each Series
contained in the most recent list furnished to the Trustee in respect of such
Series as provided in Section 701 and the name and addresses of Holders
received by the Trustee in its capacity as Security Registrar (if so acting).
The Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.
(b) If three or more Holders of Securities of any Series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish the
Trustee reasonable proof that each such applicant has owned a Security of such
Series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such Series with respect to
their rights under this Indenture or under the Securities and is accompanied by
a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five business days after
the receipt of such application, at its election, either
(i) afford such applicants access to the information in respect
of such Series preserved at the time by the Trustee in accordance
with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such Series whose names and addresses appear
in the information preserved at the time
40
by the Trustee in accordance with Section 702(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities of such Series whose name and address appear
in the information preserved at the time by the Trustee in accordance with
Section 702(a), a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of said Holders or would be in violation of
applicable law. Such written statement shall specify the basis of such
opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Holders with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with Section 702(b),
regardless of the source from which such information was derived, and that
neither the Trustee nor the Company shall be held accountable by reason of
mailing any material pursuant to a request made under Section 702(b).
Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first
such date after the issuance of the first series of Securities hereunder, the
Trustee shall transmit by mail to all Holders of Securities of each Series, as
their names and addresses appear in the Security Register, a brief report dated
as of such May 15, in accordance with and to the extent required by Section 313
of the TIA.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities of such Series are listed, with the Company, and also with the
Commission. The Company will notify the Trustee when the Securities of any
Series are listed on any stock exchange.
Section 704. Reports by Company.
The Company will
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it will file
41
with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules
and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc., only on Certain Terms.
The Company shall not, nor shall it permit ABI to, consolidate with or
merge into any other corporation or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company or ABI is merged or the Person which acquires by
conveyance, transfer or lease the properties and assets of the
Company or ABI substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America
or any State thereof or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, (a) in the case
of such a transaction with respect to the Company, the due and
punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or
observed and (b) in the case of such a transaction with respect to
ABI, the obligations of ABI under the Supplemental Agreements;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time,
or both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
This Section 801 shall not apply to any merger or consolidation in which
the Company or ABI, as the case may be, is the surviving corporation, and shall
no longer apply with respect to ABI if the liability of ABI for payment of the
Securities shall have been terminated as provided in the form of Supplemental
Agreement attached hereto.
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Section 802. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance, transfer or lease of
the properties and assets of the Company or ABI substantially as an entirety in
accordance with Section 801, the successor corporation formed by such
consolidation or into which the Company or ABI is merged or to which such
conveyance, transfer or lease is made (1) in the case of such a transaction
with respect to the Company, shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as the Company
herein, (2) in case of any such conveyance or transfer by the Company, the
Person named as the "Company" in the first paragraph of this instrument or any
successor corporation which shall theretofore have become such in the manner
prescribed in this Article shall be released from its liability under this
Indenture and as obligor on any of the Securities and (3) in the case of such a
transaction with respect to ABI, unless the obligations of ABI in respect of
the Securities shall have been terminated as provided in the form of
Supplemental Agreement, the successor corporation shall succeed to the
liabilities and obligations of ABI under each Supplemental Agreement relating
to each Outstanding Series of Securities.
Section 803. Evidence to be Furnished Trustee.
The Trustee may receive an Officers' Certificate and an Opinion of Counsel
as conclusive evidence that any such consolidation, merger, conveyance,
transfer or lease, and any such assumption, complies with the provisions of
this Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company (when authorized by a
Board Resolution) and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to provide for the issuance and the terms of any particular
Series of Securities, the rights and obligations of the Company and
the Holders of the Securities of such Series, the form or forms of
the Securities of such Series and such other matters in connection
therewith as the Board of Directors of the Company shall consider
appropriate, including, without limitation, provisions for (a)
additional or different covenants, restrictions or conditions
applicable to such Series, (b) additional or different Events of
Default in respect of such Series, (c) a longer or shorter period of
grace and/or notice in respect of any provision applicable to such
Series than is provided in Section 501, (d) immediate enforcement of
any Event of Default in respect of such Series or (e) limitations
upon the remedies available in respect of any Events of Default in
respect of such Series or upon the rights of the holders of
Securities of such Series to waive any such Event of Default;
provided, that this paragraph (3) shall not be deemed to require the
execution of a supplemental indenture to provide for the issuance of
any Series of
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Securities unless the same shall be provided for in the Authorizing
Resolution relating thereto; and
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of
one or more Series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); and
(5) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein; and
(6) to make any other change which, in the opinion of counsel
to the Company, does not materially adversely affect the interests of
the Holders of the Series of Securities affected thereby.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of all Series affected thereby (voting as
a single class), by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by a Board Resolution) and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of such Securities under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security which would be due and payable upon
acceleration under Section 502 or provable in bankruptcy under
Section 504, or change the coin or currency in which any Security or
any interest thereon is payable or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1010, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Security affected
thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular Series of Securities, or which modifies the
rights of the Holders of Securities of such Series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other Series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
44
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Unless the Company shall determine, based on an Opinion of Counsel
delivered to the Trustee, that the same shall not be required, every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of TIA as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Authenticating
Agent in exchange for Outstanding Securities of the same Series and Issue.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay (or cause to be paid) the
principal of (and premium, if any) and interest on the Securities of each
Series in accordance with the terms of such Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
Except as otherwise provided in the Authorizing Resolution in respect of
any Series, the Company will maintain an office or agency in The Borough of
Manhattan, The City of New York, where Securities may be presented or
surrendered for payment, and will maintain an office or agency in The Borough
of Manhattan, The City of New York, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company initially appoints the Trustee as such agent at its Corporate Trust
Office for said purposes. The Company will give prompt written notice to the
Trustee of any change in the location of such office or agency. If at any time
the Company shall fail to maintain such office or agency or
45
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside of such Borough) where the Securities may be
presented or surrendered for any or all of such purposes, and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in such Borough for such purposes.
Section 1003. Money for Security Payments to be Held in Trust;
Appointment of Paying Agent.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of (and premium, if any) or interest
on any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on or
before each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum, or make other arrangements
so that there will be moneys, in each case sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal (and premium, if any) or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act. The Company
initially appoints the Trustee as Paying Agent.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment
of principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has
46
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once or mailed to each such
holder or both, in a newspaper published in the English language customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 1004. Statement as to Default.
The Company will deliver to the Trustee, on or before a date not more than
four months after the end of each fiscal year (which on the date hereof ends on
December 31) of the Company ending after the date hereof, a statement (which
shall not be deemed an Officers' Certificate and need not conform with any of
the provisions of Section 102) signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company,
stating that in the course of the performance by the signers of their duties as
officers of the Company and based upon a review made under their supervision of
the activities of the Company during such year and of the Company's performance
under this Indenture they would normally obtain knowledge whether or not the
Company is in default in the performance of any covenant or agreement set forth
in the Indenture, stating whether or not they have obtained knowledge that the
Company is in default in the performance of any such covenant or agreement, and
if so, specifying each such default of which the signers have knowledge and the
nature thereof. If the Company shall have designated any Unrestricted
Subsidiaries to be Restricted Subsidiaries, or any Restricted Subsidiaries to
be Unrestricted Subsidiaries, during such fiscal year, such statement shall so
indicate and provide the identities of the Subsidiaries in question. The
Company will notify the Trustee promptly in writing of any change of its fiscal
year.
Section 1005. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders of the
Securities.
Section 1006. Limitation upon Liens.
(a) The Company will not create, assume, guarantee or suffer to exist,
and will not cause, suffer or permit any Restricted Subsidiary to create,
assume, guarantee or suffer to exist, any indebtedness for borrowed money
secured by pledge of, or mortgage or lien on, any of its Principal Plants, or
on any capital stock of any Restricted Subsidiary, other than
(i) purchase money pledges of, or purchase money mortgages or
liens on, property acquired (including through merger or consolida-
tion) after the date of execution of this Indenture, so long as such
pledges, mortgages and liens shall attach only to the assets so
acquired and improvements thereon,
47
(ii) pledges, mortgages or liens on property acquired after the
date of execution of this Indenture (1) existing at the time of
acquisition of such property (including through merger or
consolidation) or (2) which secure indebtedness the proceeds of which
are used to pay, or to reimburse the Company or any Restricted
Subsidiary for, the cost of the acquisition or construction of such
property (provided such indebtedness is incurred within 180 days
after such acquisition or completion of such construction), so long
as such pledges, mortgages and liens shall attach only to the assets
so acquired and improvements thereon,
(iii) pledges of or mortgages or liens on property of a
Restricted Subsidiary existing at the time it becomes a Restricted
Subsidiary,
(iv) pledges, mortgages or liens to secure all or any part of
the cost of development or construction of any property or assets or
improvements thereon and which shall be released or satisfied within
120 days after completion of such development or construction,
(v) pledges, mortgages or liens required in connection with the
acquisition, construction or development of additions or extensions
to Principal Plants which shall be financed by obligations described
in Sections 141 145 of the Internal Revenue Code of 1986, as amended,
or by obligations entitled to substantially similar tax benefits
under other legislation or regulations in effect from time to time,
(vi) pledges, mortgages or liens securing indebtedness owing to
the Company or a Restricted Subsidiary by a Restricted Subsidiary,
(vii) pledges, mortgages or liens existing at the date of
this Indenture,
(viii) extensions, renewals or replacements of pledges, mort-
gages or liens referred to in clauses (i) to (vii), inclusive, above,
or (xi) below, provided that the amount of indebtedness secured by
such extension, renewal or replacement shall not exceed the principal
amount of indebtedness being extended, renewed or replaced, nor shall
the pledge, mortgage or lien be extended to any additional Principal
Plant,
(ix) as permitted under Subsection (b) or Subsection (d) of this
Section 1006,
(x) pledges, mortgages or liens incurred in connection with
sale-leaseback transactions permitted under Section 1007, and
(xi) pledges, mortgages or liens required in connection with any
program, law, statute or regulation of any state or local
governmental entity or authority which provides financial or tax
benefits not available without such pledge, mortgage or lien,
provided that the obligations secured thereby are obligations that
are in lieu of, or reduce, a property tax or other payment obligation
that itself would have been secured by a pledge, mortgage or lien
permitted hereunder,
without effectively providing that the Securities (together with, if the
Company shall so determine, any other indebtedness of the Company then existing
or thereafter created ranking equally with the Securities and any other
indebtedness of the Restricted Subsidiary then existing or thereafter created)
shall be secured by the security of such secured indebtedness equally and
ratably therewith.
(b) If the Company or any Restricted Subsidiary shall at any time enter
into a merger or consolidation with another corporation or purchase all or
substantially all of the assets of another corporation, or if the Company shall
sell all or substantially all of its assets to another corporation and if such
other corporation has outstanding indebtedness secured by a mortgage or other
lien which, by reason of an after-acquired property clause or similar provision
therein
48
contained, would extend, after such merger, consolidation, sale or purchase, to
any Principal Plant owned by the Company or such Restricted Subsidiary
immediately prior to such merger, consolidation, sale or purchase, the Company
or such Restricted Subsidiary, as the case may be, shall in such event be
deemed to have created a mortgage or lien, within the prohibition of Subsection
(a) of this Section 1006, unless (i) such merger or consolidation involving a
Restricted Subsidiary shall constitute a disposition by the Company of its
interest in the Restricted Subsidiary, or (ii) either (A) at or prior to the
effective date of such merger, consolidation, sale or purchase, such mortgage
or lien shall have been released of record or otherwise satisfied to the extent
it would extend to such Principal Plant or (B) prior to such merger,
consolidation, sale or purchase, the Company or such Restricted Subsidiary, as
the case may be, shall have created, as security for the Securities (and, if
the Company shall so determine, as security for any other indebtedness of the
Company then existing or thereafter created ranking equally with the Securities
and any other indebtedness of the Restricted Subsidiary then existing or
thereafter created), a valid lien which, upon completion of said merger,
consolidation, sale or purchase, will rank prior to the lien of such mortgage
or other lien of such other corporation on such Principal Plant.
(c) If pursuant to the provisions of this Section 1006 the Company or any
Restricted Subsidiary shall at any time be obligated to secure the Securities
(together with, if the Company shall so determine, any other indebtedness then
existing or thereafter created ranking equally with the Securities and any
other indebtedness of the Restricted Subsidiary then existing or thereafter
created), the Company covenants and agrees that it will promptly furnish to the
Trustee
(i) an Officers' Certificate stating that the applicable
covenant of the Company above set forth in this Section 1006 has been
complied with; and
(ii) an Opinion of Counsel to the effect that such covenant has
been complied with.
(d) Notwithstanding the foregoing provisions of this Section 1006, the
Company and any one or more Restricted Subsidiaries may create, assume,
guarantee or suffer to exist any indebtedness for borrowed money otherwise
subject to the foregoing restrictions and in addition to that permitted by
Subsection (a) or (b) of this Section 1006 (other than pursuant to clause (x)
of said Subsection (a)), and renew, extend or replace such indebtedness for
money borrowed; provided, that, at the time of such creation, assumption,
renewal, extension or replacement, the aggregate amount of such indebtedness
for money borrowed, when added to the fair market value of property transferred
in sale-leaseback transactions as permitted by Section 1007(c) and the
aggregate amount of indebtedness for borrowed money created, assumed,
guaranteed or permitted to exist as permitted by Section 1008(b) (computed
without duplication of amounts constituting indebtedness, referred to in this
Subsection (d)), does not at the time exceed 10% of Net Tangible Assets.
Section 1007. Sale-Leaseback Transactions Relating to Principal Plants.
(a) Except to the extent permitted under Subsection (c) of this Section
1007, and except 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 property by the Company or any Restricted Subsidiary will be
discontinued, the Company shall not sell any Principal Plant as an entirety, or
any substantial portion thereof, with the intention of taking back a lease of
such property and the Company will not permit any Restricted Subsidiary to sell
to anyone other than the Company or a Restricted Subsidiary any Principal Plant
as an entirety, or any substantial portion thereof, with the intention of
taking back a lease of such property unless
49
(i) the net proceeds of such sale (including any purchase money
mortgages received in connection with such sale) are at least equal to the
fair market value (as determined by Board Resolution) of such property and
(ii) subject to Subsection (d) of this Section 1007, the Company
shall, within 120 days after the transfer of title to such property
(A) purchase, and surrender to the Trustee for retirement
as provided in this Section 1007, a principal amount of
Securities equal to the net proceeds derived from such sale
(including the amount of any such purchase money mortgages), or
(B) repay other Funded Debt of the Company or any
Restricted Subsidiary in an amount equal to such net proceeds,
or
(C) expend an amount equal to such net proceeds for the
expansion, construction or acquisition of a Principal Plant, or
(D) effect a combination of such purchases, repayments and
plant expenditures in an amount equal to such net proceeds.
(b) At or prior to the date 120 days after a transfer of title to a
Principal Plant which shall be subject to the requirements of this Section
1007, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that the covenant of the
Company in Section 1007(a) has been complied with and setting forth in
detail the manner of such compliance, which certificate shall contain
information as to (A) the amount of Securities theretofore redeemed and
the amount of Securities theretofore purchased by the Company and
cancelled by the Trustee and the amount of Securities purchased by the
Company and then being surrendered to the Trustee for retirement, (B) the
amount thereof previously credited under Subsection (d) of this Section
1007, (C) the amount thereof which it then elects to have credited on its
obligation under Subsection (d) of this Section 1007, and (D) any amount
of other indebtedness which the Company has repaid or will repay and of
the expenditures which the Company has made or will make in compliance
with its obligation under Subsection (a) of this Section 1007,
(ii) a deposit with the Trustee for retirement of the Securities then
being surrendered as set forth in such certificate; and
(iii) an Opinion of Counsel to the effect that such covenant has
been complied with.
(c) Notwithstanding the restriction of Subsection (a) of this Section
1007, the Company and any one or more Restricted Subsidiaries may transfer
property in sale-leaseback transactions which would otherwise be subject to
such restriction if the aggregate amount of the fair market value of the
property so transferred, when added to the aggregate amount of indebtedness for
borrowed money permitted by Section 1006(d) and Section 1008(b) which shall be
outstanding at the time (computed without duplication of the value of property
transferred as provided in this Subsection (c)), does not at the time exceed
10% of Net Tangible Assets.
(d) The Company, at its option, shall be entitled to a credit, in respect
of its obligation to purchase and retire Securities under this Section 1007,
for the principal amount of any Securities deposited with the Trustee for the
purpose and also for the principal amount of (i) any Securities theretofore
redeemed at the option of the Company and (ii) any Securities previously
purchased by the Company and cancelled by the Trustee, and in each case not
theretofore applied as a credit under this Subsection (d) or Section 1202.
(e) For purposes of this Section 1007, the amount or the principal amount
of Securities which are Original Issue Discount Securities shall be the
principal amount of said Original Issue
50
Discount Securities that on the date of the purchase or redemption of such
Securities referred to in this Section could be declared to be due and payable
pursuant to Section 502.
Section 1008. Limitation Upon Funded Debt of Restricted Subsidiaries.
(a) The Company will not permit any Restricted Subsidiary to create,
assume or permit to exist any Funded Debt other than (A) Funded Debt secured by
a mortgage, pledge or lien which is permitted to such Restricted Subsidiary
under the provisions of Section 1006, (B) Funded Debt owed to the Company or
any Restricted Subsidiary, (C) Funded Debt of a corporation existing at the
time it becomes a Restricted Subsidiary, (D) Funded Debt created in connection
with, or with a view to, compliance by such Restricted Subsidiary with the
requirements of any program, law, statute or regulation of any federal, state
or local governmental authority, which is applicable to such Restricted
Subsidiary and which provides financial or tax benefits to such Restricted
Subsidiary which are not available directly to the Company or available
directly to the Company only on terms which the Company determines are not as
favorable as those available to the Restricted Subsidiary, (E) guarantees
existing at the date of this Indenture, and (F) guarantees and co-obligations,
in each case on terms substantially similar to the terms set forth in the form
of Supplemental Agreement attached hereto, of Funded Debt with respect to which
the Company is liable (as direct obligor, co-obligor, additional guarantor or
otherwise), provided, that this clause (F) shall apply only so long as ABI
shall continue to be a co-obligor in respect of the Securities issued hereunder
on the terms provided in the form of Supplemental Agreement.
(b) Notwithstanding the provisions of paragraph (a) of this Section 1008,
any Restricted Subsidiary may create, assume or permit to exist any Funded Debt
in addition to that permitted by paragraph (a) of this Section 1008, and renew,
extend or replace such Funded Debt, provided that at the time of such creation,
assumption, renewal, extension or replacement, and after giving effect thereto,
the aggregate amount of such Funded Debt which would otherwise be subject to
the foregoing restriction, together with the aggregate amount of indebtedness
for borrowed money permitted by Subsection (d) of Section 1006 and the
aggregate amount of the fair market value of property transferred in
sale-leaseback transactions as permitted by Subsection (c) of Section 1007
(computed without duplication of amounts) does not at the time exceed 10% of
Net Tangible Assets.
Section 1009. Maintenance of Insurance.
The Company will cause its property and the property of each Subsidiary to
be insured at all times against loss from damage or destruction by fire and
other risks to the extent and in such manner as is customary for companies
comparable in size to the Company and conducting businesses similar in size and
nature to the businesses carried on by the Company from time to time; provided,
however, that the Company and each of its Subsidiaries may adopt (in lieu of or
supplementing such insurance) any other or supplemental plan or method of
protection against loss, including self-insurance plans, as may be determined
by the Company to be in the overall best interests of the Company from time to
time.
Section 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1005 to 1009, inclusive, and any
other covenant or condition set forth in any Authorizing Resolution or
supplemental indenture for the benefit of the Holders of the Securities or any
particular Series of Securities, if the Holders of not less than a majority in
principal amount of the Securities at the time Outstanding of all Series which
are entitled to the benefits thereof (voting as a single class) shall, by Act
of such Holders, either waive such
51
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force
and effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Right of Redemption.
Redeemable Securities may be redeemed otherwise than through the operation
of the Sinking Fund provided for in Article Twelve at the election of the
Company at the times, on the conditions and at the Redemption Prices specified
therein, in (or pursuant to) the Authorizing Resolution relating thereto and in
the supplemental indenture (if any) executed in connection with the issuance of
such Securities, any Redemption Price to be accompanied by accrued interest to
the Redemption Date.
Section 1102. Applicability of Article.
Redemption of Securities at the election of the Company or otherwise, as
permitted or required by any provision referred to in Section 1101, shall be
made in accordance with such provision and this Article.
Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or set forth in an Officers' Certificate which states that
such election has been duly authorized by all requisite corporate action on the
part of the Company. In case of any redemption at the election of the Company
of less than all of the Securities the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of the Series or Issue or the several Series
or Issues, as the case may be, to be redeemed. In the case of any redemption
of Securities prior to the expiration of any restriction on such redemption
provided in the Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance with
such restriction.
Section 1104. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any Series or Issue are to be redeemed,
the particular Securities of such Series or Issue to be redeemed shall be
selected not more than 90 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such Series or Issue not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
the minimum authorized denomination of the Series or Issue or any integral
multiple thereof) of the principal amount of such Securities of a denomination
larger than such minimum denomination. If the Company shall so specify,
Securities held by the Company or any Subsidiary shall not be included in the
Securities selected for redemption.
52
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
Section 1105. Notice of Redemption.
Notice of redemption shall be given by first class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of the Series or
Issue are to be redeemed, the identification (and, in the case of
partial redemption, the principal amount) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, and that interest
thereon shall cease to accrue on and after said date,
(5) that the redemption is for a Sinking Fund, if such is the
case; and
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Rice.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name of and at the expense of the Company.
Section 1106. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) any accrued interest on, all the
Securities or portions thereof which are to be redeemed on that date.
Section 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price thereof and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor
53
Securities, registered as such on the relevant Regular or Special Record Date
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid
or duly provided for, bear interest from the Redemption Date at the rate borne
by the Security or, in the case of Original Issue Discount Securities, at a
rate equal to the Yield to Maturity thereof.
Section 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
the office or agency of the Company maintained for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute and the Authenticating
Agent shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities of the same Issue, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered; except that if a Global Security is so
surrendered, the Company shall execute, and the Trustee shall authenticate,
upon Company Order, and deliver to the Depositary for such Global Security
without service charge, a new Global Security in a denomination equal to and in
exchange for the unredeemed portion of the principal amount of the Global
Security so surrendered.
ARTICLE TWELVE
Sinking Fund
Section 1201. Sinking Fund Payments.
As and for a Sinking Fund for the retirement of Sinking Fund Securities,
the Company will, until all such Securities are paid or payment thereof is duly
provided for, deposit in accordance with Section 1106, at such times and
subject to such terms and conditions as shall be specified in the provisions of
such Securities and the Authorizing Resolution and supplemental indenture (if
any) relating thereto, such amounts in cash as shall be required or permitted
under such provisions in order to redeem Securities on the specified Redemption
Dates at a Redemption Price equal to their principal amounts, less in each such
case the amount of any credit against such payment received by the Company
under Section 1202. Each such Sinking Fund payment shall be applied to the
redemption of Securities on the specified Redemption Date as herein provided.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Securities of the same Issue (other than any
previously called for redemption or theretofore applied as a credit against a
Sinking Fund payment or as a credit under Section 1007(d)) and (2) may apply as
a credit Securities of the same Issue redeemed at the election of the Company
pursuant to Section 1101 or through the operation of the Sinking Fund in any
period in excess of the minimum amount required for such period under Section
1201 or the provisions relating to such Issue referred to in Section 1201 and
not theretofore applied as a credit against a Sinking Fund payment or a credit
under Section 1007(d), in each case in satisfaction of all or any part of any
Sinking Fund payment required to be made pursuant to Section 1201. Each such
Security so delivered or applied shall be credited for such purpose
54
by the Trustee at a Redemption Price equal to its principal amount and the
required amount of such Sinking Fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
If in any year the Company shall elect to redeem in excess of the minimum
principal amount of Securities required to be redeemed pursuant to Section 1201
or to satisfy all or any part of any Sinking Fund payment by delivering or
crediting Securities pursuant to Section 1202, then at least 60 days prior to
the date on which the Sinking Fund payment in question shall be due (or such
shorter period as shall be approved by the Trustee), the Company shall deliver
to the Trustee an Officers' Certificate specifying the amount of the Sinking
Fund payment and the portions thereof which are to be satisfied by payment of
cash, by delivery of Securities or by crediting Securities, and, at least 45
days prior to the Sinking Fund payment date (or such shorter period as shall be
approved by the Trustee), will also deliver to the Trustee the Securities to be
so delivered. Such Officers' Certificate shall also state that the Securities
forming the basis of any such credit do not include any Securities which have
been redeemed through the operation of the Sinking Fund in the minimum amount
required under Section 1201, previously credited against any Sinking Fund
payment or credited in accordance with Section 1007(d). The Trustee shall,
upon the receipt of such Officers' Certificate (or, if it shall not have
received such an Officers' Certificate at least 60 days prior to the Sinking
Fund payment date, then following such 60th day), select the Securities to be
redeemed upon the next Sinking Fund payment date, in the manner specified in
Section 1104, and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
1105. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1107 and
1108.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance.
Section 1301. Defeasance. Upon the Company's election to have this
Section 1301 apply to one or more Series of Securities, and upon satisfaction
of the applicable conditions specified in Section 1303, the Company shall be
discharged from all of its obligations under such Securities and under this
Indenture with respect to such Securities, except for its obligations under
Sections 304, 305, 306, 607, 1002 and 1003 and this Article Thirteen (referred
to below as a defeasance).
Section 1302. Covenant Defeasance. Upon the Company's election to have
this Section 1302 apply to one or more Series of Securities, and upon
satisfaction of the applicable conditions specified in Section 1303, the
Company shall be released from its obligations under Article Eight and Sections
1005 through 1009, inclusive, with respect to such Securities and the
occurrence of an event specified in Section 501(4) (with respect to Article
Eight or any of said Sections 1005 through 1009, inclusive) shall not be deemed
to be an Event of Default with respect to such Securities (referred to below as
a covenant defeasance). Such covenant defeasance means that, with respect to
such Securities, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section, whether directly or indirectly by reason of any reference in this
Indenture or in any other document to any such Section, and that such
Securities shall thereafter be deemed not to be Outstanding for the purposes of
any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with the provisions of Article Eight
and
55
Sections 1005 through 1009, inclusive, but shall continue to be deemed
Outstanding for all other purposes hereunder.
Section 1303. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1301 or Section 1302 to the Securities of any Series:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (which term, for purposes of this Article, shall also refer to
another trustee satisfying the requirements of Section 609 who shall agree to
comply with the applicable provisions of this Article) in trust for the Holders
of such Securities (A) money in an amount, or (B) U.S. Government Obligations
(as defined below) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms, and with no further
reinvestment, will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge the principal of (and premium, if any) and interest on such
Securities at or before the Stated Maturity thereof (and to redeem any Sinking
Fund Securities required to be redeemed prior to such payment and discharge) in
accordance with this Indenture and such Securities. U.S. Government
Obligations means securities that are (x) direct obligations of the United
States of America for the timely payment of which its full faith and credit is
pledged or (y) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America, the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian of such U.S. Government
Obligation or of a specific payment of principal of or interest on any such
U.S. Government Obligation held by such custodian for the account of the holder
of such depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
such holder from any amount received by the custodian in respect of such U.S.
Government Obligation. Notwithstanding the foregoing, in the case of any
Redeemable Securities which are to be redeemed prior to their respective Stated
Maturities, no deposit under this paragraph shall be deemed sufficient to pay
and discharge such Securities as aforesaid until proper notice of such
redemption shall have been given in accordance with Article XI of this
Indenture or irrevocable instructions shall have been given to the Trustee to
give such notice.
(2) The Company shall have delivered to the Trustee an Opinion of Counsel
stating that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of such deposit, defeasance or covenant
defeasance and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would have been the case if such deposit,
defeasance or covenant defeasance had not occurred.
(3) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that such Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(4) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities shall
have occurred and be continuing on the date of such deposit or, insofar as any
event described in Section 501(5) or (6), at any time prior to the 91st day
after such deposit.
56
(5) Such deposit, defeasance or discharge shall not result in a violation
of, or constitute a default under, any other agreement or instrument to which
the Company is a party or by which it is bound.
(6) Such defeasance or covenant defeasance shall not result in the trust
arising from such deposit constituting an investment company as defined in the
Investment Company Act of 1940, as amended, or such trust shall be qualified
under such act or exempt from regulation thereunder.
(7) Such defeasance or covenant defeasance shall not cause the Trustee to
have a conflicting interest under the TIA with respect to any Securities of the
Company or any guarantor.
(8) The Company shall have delivered to the Trustee (i) an Officers'
Certificate setting forth such election under Section 1301 or 1302, as
applicable, and stating that all conditions precedent provided for relating to
such defeasance, discharge or deposit have been complied with, and (ii) an
Opinion of Counsel stating that all conditions precedent provided for relating
to such defeasance, discharge or deposit have been complied with.
Section 1304. Application of Funds.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee pursuant to Section 1303 in respect of one or more Series of
Securities shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay (in addition to any U.S. Government Obligations
deposited pursuant to Section 1303), and indemnify the Trustee against, any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1303 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Securities for which such
deposit is made.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1303 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
Section 1305. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 1304 by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities of such Series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article Thirteen
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 1304; provided, however, that if the Company
makes any payment of principal of and any premium or interest on any Security
following the reinstatement of its obligations, the
57
Company shall be subrogated to the rights of the Holders of the Securities of
such Series to receive such payment from the money held by the Trustee or the
Paying Agent.
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be as original, but all such counterparts
shall together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
Anheuser-Busch Companies, Inc.
By ____________________________
William J. Kimmins, Jr.
Treasurer
_____________,
Trustee
By ____________________________
58
Exhibit A
Supplemental Agreement
SUPPLEMENTAL AGREEMENT ("Agreement"), dated as of _____________, _____,
among Anheuser-Busch, Incorporated, a Missouri corporation (hereinafter called
"ABI"), having its principal office at One Busch Place, St. Louis, Missouri
63118, Anheuser-Busch Companies, Inc., a Delaware corporation (hereinafter
called the "Company"), having its principal office at One Busch Place, St.
Louis, Missouri 63118, and _____________, a ________ corporation, as trustee
(hereinafter called the "Trustee").
RECITALS
The Company and the Trustee have entered into an Indenture, dated as of
___________, 199_, relating to the issuance by the Company of its securities
(the "Securities") from time to time in one or more series (a "Series"), which
provides that ABI will become jointly and severally liable with the Company in
respect of the Securities of each Series, and the Company has authorized the
issuance of such a Series, consisting of [description of Series] (the
"Securities").
In consideration for the assumption by the Company of certain outstanding
indebtedness of ABI, and in accordance with agreements entered into between the
Company and ABI at the time of such assumption, and in further consideration of
the anticipated benefits, direct and indirect, to ABI as a result of the
issuance of the Securities, and for other good and valuable consideration, ABI
is willing to become liable, as co-obligor with the Company, for payment of the
principal of (and premium, if any) and interest on the Securities, as
hereinafter provided, and subject to the conditions hereinafter set forth.
All things required to make this Agreement the valid agreement of ABI have
been done.
AGREEMENT
Now, Therefore, this Agreement witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined in the aforesaid Indenture), it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
of the aforesaid Holders of the Securities, as follows:
Section 1. Definitions. Unless otherwise defined herein, terms used
in this Agreement shall have the respective meanings assigned in Article One of
the Indenture.
Section 2. Liability of ABI For Payment.
(a) ABI Liable for Principal, Premium and Interest. Subject to the
provisions of paragraph (c) of this Section 2 as to the duration of such
obligation, ABI agrees duly and punctually to pay (or cause to be paid) the
principal of (and premium, if any) and interest on the Securities in accordance
with the terms of the Securities, this Agreement and the Indenture, except to
the extent that the same shall be paid by the Company. In carrying out the
foregoing obligation with respect to the Securities, ABI shall follow the
applicable procedures set forth in the Indenture and in the Securities to the
same extent as if it were named as the "Company" therein and had executed and
delivered the Securities as provided in the Indenture with respect to the
Company.
A-1
(b) Applicability of Provisions Relating to Remedies. The provisions of
Sections 503 through 516 of the Indenture shall be applicable to the
obligations of ABI set forth in this Agreement to the same extent as if such
provisions were set forth herein in their entirety; provided, that for these
purposes each reference to the "Company" in such Sections shall be deemed to
refer to ABI. The rights or remedies granted to the Trustee and the Holders in
this Agreement, in Article Five of the Indenture or elsewhere in the Indenture,
or in the Securities, shall be cumulative in respect of the Company and ABI,
and the Trustee and the Holders shall be entitled to exercise such rights in
respect of the Company and ABI jointly, separately or consecutively, and, no
such exercise in respect of the Company or ABI shall be limited or affected by
any exercise or failure to exercise in respect of the other, except that, as
contemplated by paragraph (a) of this Section 2, any payment by the Company of
principal of (and premium, if any) and interest on the Securities shall
eliminate the corresponding obligation of ABI to make the same payment.
(c) Duration of ABI Liability. The obligations of ABI as set forth in
this Agreement shall terminate, and this Agreement shall be of no further force
or effect, on that date (the "Termination Date") when:
(1) there shall not be outstanding any Funded Debt for which
ABI is liable, as direct obligor, co-obligor, guarantor or otherwise,
except for Funded Debt permitted under Section 1008 of the Indenture;
and
(2) all liability of ABI as co-obligor for Funded Debt of the
Company shall have been terminated or shall terminate at
approximately the same time as the termination of the obligations of
ABI hereunder; and
(3) there shall not have occurred and be continuing any Event
of Default or event which, with the passage of time or giving of
notice, or both, would become an Event of Default; and
(4) the Company shall have filed with the Trustee an Officers'
Certificate to the effect that the foregoing conditions have been
complied with, and shall have given notice by mail to all Holders of
Securities, as their names and addresses appear in the Security
Register, that such conditions have been complied with and that,
accordingly, ABI is to be released from liability in respect of the
Securities.
Section 3. Agreement Deemed Part of Indenture. This Agreement shall
be deemed to be a part of the Indenture, to the same extent as if it had been
set forth therein in its entirety. Subject to Section 2(c)(2) above, ABI
agrees that it shall be bound by all provisions of the Indenture applicable to
it or to this Agreement to the same extent as if ABI were a party to the
Indenture.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
A-2
In Witness Whereof, the parties hereto have caused this Agreement to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Anheuser-Busch, Incorporated
By _______________________________
Anheuser-Busch Companies, Inc.
By _______________________________
_____________,
as Trustee
By _______________________________
A-3
Armstrong, Teasdale, Schlafly & Davis
Attorneys at Law
One Metropolitan Square
Suite 2600
St. Louis, Missouri 63102
July 6, 1995
Anheuser-Busch Companies, Inc.
One Busch Place
St. Louis, Missouri 63118
Re: Registration Statement on Form S-3 Relating to $648,000,000
Principal Amount of Debt Securities
Gentlemen:
Anheuser-Busch Companies, Inc. (the "Company") proposes to file with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, a Registration Statement on Form S-3 (the "Registration Statement")
relating to the proposed issuance from time to time by the Company of its debt
securities (the "Debt Securities") in aggregate principal amount of up to
$648,000,000. The Debt Securities would be issued from time to time in one or
more series (a "Series") under one or more Indentures (the "Indenture"),
between the Company and Chemical Bank, as trustee, or another trustee (the
"Trustee"), the forms of which are exhibits to the Registration Statement.
To enable us to render the opinion set forth below, we have examined
corporate records of the Company and such other documents and materials as we
have considered relevant, and have made such investigation of matters of law
and of fact as we have considered appropriate.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and has full
corporate power to execute and deliver the Debt Securities.
2. The execution and delivery of the Indenture has been duly
authorized by all requisite action on the part of the Company. Upon
execution and delivery of the Indenture by the Company, and compliance
with the procedures specified in the Indenture relating thereto, the
issuance of the Debt Securities of the several Series will be duly
authorized. When the Debt Securities of the several Series have been so
authorized and executed by the Company, authenticated by the Trustee and
delivered against payment therefor, the Debt Securities of such Series
will constitute the valid and binding obligations of the Company,
enforceable against it in accordance with their terms, except as such
enforceability may be limited by bankruptcy and other laws affecting
creditors' rights generally as in effect from time to time, and except
that the availability of certain equitable remedies may be limited by
generally applicable equitable principles.
We consent to the filing of this opinion as an exhibit to the Registration
Statement, and we consent to the use of our name in the Registration Statement
and the related Prospectus.
Very truly yours,
ARMSTRONG, TEASDALE, SCHLAFLY & DAVIS
Armstrong, Teasdale, Schlafly & Davis
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 and Amendment No.
1 to Registration Statement on Form S-3 (No. 33-49051) of our report dated
February 6, 1995, which appears on page 66 of the 1994 Annual Report to
Shareholders of Anheuser-Busch Companies, Inc., which is incorporated by
reference in the Company's Annual Report on Form 10-K for the year ended
December 31, 1994. We also consent to the incorporation by reference of our
report on the Financial Statement Schedule, which appears on page 15 of such
Annual Report on Form 10-K. We also consent to the reference to us under the
heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
St. Louis, Missouri
July 5, 1995
EXHIBIT 24.1
ANHEUSER-BUSCH COMPANIES, INC.
POWER OF ATTORNEY
Each of the undersigned directors and officers of Anheuser-Busch
Companies, Inc., a Delaware corporation (the "Company"), hereby appoints August
A. Busch III, Jerry E. Ritter and JoBeth G. Brown, and each of them acting
singly, the true and lawful agents and attorneys of the undersigned, with full
power of substitution, to do all things and to execute all instruments which
any of them may deem necessary or advisable to enable the Company to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the proposed registration under said Act pursuant to a
Registration Statement on Form S-3 of an additional $648,000,000 principal
amount of the debt securities of the Company (for a total of $750,000,000
available for issuance, including $102,000,000 which remains available under
the Company's previous Registration Statement No. 33-49051), in accordance with
Rule 415 under said Act and as authorized by the Board of Directors of the
Company on June 28, 1995; this authorization to include the authority to sign
the name of each of the undersigned in the capacities indicated below to the
said proposed Registration Statement to be filed with the Securities and
Exchange Commission in respect of said securities, and to any amendments to
said prior or proposed Registration Statements.
IN WITNESS WHEREOF, each of the undersigned has executed a copy of this
Power of Attorney as of June 28, 1995.
August A. Busch III Jerry E. Ritter
-------------------------------- --------------------------------
August A. Busch III Jerry E. Ritter
Chairman of the Board Executive Vice President -
and Chief Executive Officer Chief Financial and
(Principal Executive Officer) Administrative Officer
(Principal Financial Officer)
Gerald C. Thayer
-------------------------------- --------------------------------
Gerald C. Thayer Pablo Aramburuzabala O.
Vice President and Controller Director
(Principal Accounting Officer)
Bernard A. Edison
-------------------------------- --------------------------------
Andrew B. Craig III Bernard A. Edison
Director Director
Peter M. Flanigan John E. Jacob
-------------------------------- --------------------------------
Peter M. Flanigan John E. Jacob
Director Director
Charles F. Knight Vernon R. Loucks, Jr.
-------------------------------- --------------------------------
Charles F. Knight Vernon R. Loucks, Jr.
Director Director
Vilma S. Martinez Sybil C. Mobley
-------------------------------- --------------------------------
Vilma S. Martinez Sybil C. Mobley
Director Director
James B. Orthwein Andrew C. Taylor
-------------------------------- --------------------------------
James B. Orthwein Andrew C. Taylor
Director Director
Douglas A. Warner III William H. Webster
-------------------------------- --------------------------------
Douglas A. Warner III William H. Webster
Director Director
Edward E. Whitacre, Jr.
--------------------------------
Edward E. Whitacre, Jr.
Director
EXHIBIT 24.2
ANHEUSER-BUSCH, INCORPORATED
POWER OF ATTORNEY
Each of the undersigned directors and officers of Anheuser-Busch,
Incorporated, a Missouri corporation ("ABI"), hereby appoints August A. Busch
III, Jerry E. Ritter and JoBeth G. Brown, and each of them acting singly, the
true and lawful agents and attorneys of the undersigned, with full power of
substitution, to do all things and to execute all instruments which any of them
may deem necessary or advisable to enable the ABI to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission in respect thereof, in connection with (i)
the proposed registration under said Act pursuant to a Registration Statement
on Form S-3 of an additional $648,000,000 principal amount of debt securities
of Anheuser-Busch Companies, Inc., ABI's parent corporation (the "Company"),
(for a total of $750,000,000 available for issuance, including $102,000,000
which remains available under the Company's previous Registration Statement No.
33-49051), and (ii) the co-obligation of ABI in respect of such debt
securities, pursuant to Rule 415 under said Act and all as authorized by the
Board of Directors of the Company on June 28, 1995; this authorization to
include the authority to sign the name of each of the undersigned in the
capacities indicated below to the said proposed Registration Statement to be
filed with the Securities and Exchange Commission in respect of said securities
and to any amendments to said prior or proposed Registration Statements.
IN WITNESS WHEREOF, each of the undersigned has executed a copy of this
Power of Attorney as of June 28, 1995.
August A. Busch III Patrick T. Stokes
-------------------------------- --------------------------------
August A. Busch III Patrick T. Stokes
Chairman of the Board President and Director
and Chief Executive Officer
(Principal Executive Officer)
Jerry E. Ritter Gerald C. Thayer
-------------------------------- --------------------------------
Jerry E. Ritter Gerald C. Thayer
Vice President - Finance Controller
and Director (Principal Accounting Officer)
(Principal Financial Officer)
W. Randolph Baker August A. Busch IV
-------------------------------- --------------------------------
W. Randolph Baker August A. Busch IV
Director Director
Joseph L. Goltzman James F. Hoffmeister
-------------------------------- --------------------------------
Joseph L. Goltzman James F. Hoffmeister
Director Director
James I. Hunter III John E. Jacob
-------------------------------- --------------------------------
James I. Hunter III John E. Jacob
Director Director
Donald W. Kloth Gerhardt A. Kraemer
-------------------------------- --------------------------------
Donald W. Kloth Gerhardt A. Kraemer
Director Director
Stephen K. Lambright Aloys H. Litteken
-------------------------------- --------------------------------
Stephen K. Lambright Aloys H. Litteken
Director Director
Ellis W. McCracken, Jr. Anthony T. Ponturo
-------------------------------- --------------------------------
Ellis W. McCracken, Jr. Anthony T. Ponturo
Director Director
William L. Rammes
-------------------------------- --------------------------------
William L. Rammes Jesus Rangel
Director Director
Joseph P. Sellinger Wayman F. Smith III
-------------------------------- --------------------------------
Joseph P. Sellinger Wayman F. Smith III
Director Director
Exhibit 25
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
ANHEUSER-BUSCH COMPANIES, INC.
(Exact name of obligor as specified in its charter)
Delaware 43-1162835
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ANHEUSER-BUSCH, INCORPORATED
(Exact name of co-oblligor as specified in its charter)
Missouri 43-0161000
(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)
___________________________________________
Debt Securities
(Title of the indenture securities)
_____________________________________________________
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C., 20551
and Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985 and December 2, 1991 (see Exhibit 1 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is incorporated by
reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 33-84460, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-
50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chemical Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 26th day of June, 1995.
CHEMICAL BANK
By F. J. Grippo
---------------------------------
F. J. Grippo
Vice President
- 3 -
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1995, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin . . . . . . . . . . . . . . . $ 5,797
Interest-bearing balances . . . . . . . . . . . 5,523
Securities: . . . . . . . . . . . . . . . . . . . .
Held to maturity securities . . . . . . . . . . . . 6,195
Available for sale securities . . . . . . . . . . . 17,785
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold . . . . . . . . . . . . . . . 2,493
Securities purchased under agreements to resell 50
Loans and lease financing receivables:
Loans and leases, net of unearned income . $68,937
Less: Allowance for loan and lease losses. 1,898
Less: Allocated transfer risk reserve. . . 113
-------
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . 66,926
Trading Assets . . . . . . . . . . . . . . . . . . 37,294
Premises and fixed assets (including capitalized
leases) . . . . . . . . . . . . . . . . . . . . 1,402
Other real estate owned . . . . . . . . . . . . . . 99
Investments in unconsolidated subsidiaries and
associated companies . . . . . . . . . . . . . . 148
Customer's liability to this bank on acceptances
outstanding . . . . . . . . . . . . . . . . . . 1,051
Intangible assets . . . . . . . . . . . . . . . . . 512
Other assets . . . . . . . . . . . . . . . . . . . 6,759
--------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . $149,034
========
</TABLE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices . . . . . . . . . . . . . . $44,882
Noninterest-bearing. . . . . . . . . . . . $14,690
Interest-bearing . . . . . . . . . . . . . 30,192
-------
In foreign offices, Edge and Agreement
subsidiaries, and IBF's . . . . . . . . . . . . 32,537
Noninterest-bearing. . . . . . . . . . . . $ 146
Interest-bearing . . . . . . . . . . . . . 32,391
-------
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's Federal funds purchased . . . . . . 10,587
Securities sold under agreements to repurchase . 3,083
Demand notes issued to the U.S. Treasury . . . . . 464
Trading liabilities . . . . . . . . . . . . . . . . 31,358
Other Borrowed money:
With original maturity of one year or less . . . 7,527
With original maturity of more than one year . . 914
Mortgage indebtedness and obligations under
capitalized leases . . . . . . . . . . . . . . . 20
Bank's liability on acceptances executed and
outstanding . . . . . . . . . . . . . . . . . . 1,054
Subordinated notes and debentures . . . . . . . . . 3,410
Other liabilities . . . . . . . . . . . . . . . . . 5,986
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . 141,822
--------
</TABLE>
<TABLE>
<CAPTION>
EQUITY CAPITAL
<S> <C>
Common stock . . . . . . . . . . . . . . . . . . . 620
Surplus . . . . . . . . . . . . . . . . . . . . . . 4,501
Undivided profits and capital reserves . . . . . . 2,558
Net unrealized holding gains (Losses)
on available-for-sale securities . . . . . . . . . (476)
Cumulative foreign currency translation adjustments 9
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . 7,212
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL . . . . . . . . . . . . $149,034
========
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report
of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal
regulatory authority and is true to the best of my
knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the
correctness of this Report of Condition and declare
that it has been examined by us, and to the best of
our knowledge and belief has been prepared in
conformance with the instructions issued by the
appropriate Federal regulatory authority and is true
and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
