Exhibit 4.2
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ANHEUSER-BUSCH COMPANIES, INC.
TO
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Trustee
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Indenture
Dated as of , 200
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DEBT SECURITIES
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Exhibit 4.2
CROSS REFERENCE SHEET
between
The Indenture
and
The Trust Indenture Act of 1939
Trust Indenture Act Section Indenture Section
ss.310 (a)(1)......................................... 609
(a)(2)......................................... 609
(a)(3)......................................... Not Applicable
(a)(4)......................................... Not Applicable
(a)(5)......................................... 609
(b)............................................ 608, 610
(c)............................................ Not Applicable
ss.311 (a)............................................ Not Applicable
(b)............................................ Not Applicable
(c)............................................ Not Applicable
ss.312 (a)............................................ 701, 702(a)
(b)............................................ 702(b)
(c)............................................ 702(c)
ss.313 (a)............................................ 703(a)
(b)............................................ Not Applicable
(c)............................................ 703(a), 703(b)
(d)............................................ 703(b)
ss.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
ss.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
ss.316 (a)(1)(A)...................................... 502, 512
(a)(1)(B)...................................... 513
(a)(2)......................................... Not Applicable
(b)............................................ 508
(c)............................................ 104(e)
ss.317 (a)(1)......................................... 503
(a)(2)......................................... 504
(b)............................................ 1003
ss.318 (a)............................................ 107
NOTE: This cross reference sheet shall not, for any purpose, be deemed to
be a part of the Indenture.
Exhibit 4.2
TABLE OF CONTENTS
ARTICLE ONE -- DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.........1
Section 101. Definitions...................................................1
Section 102. Compliance Certificates and Opinions..........................9
Section 103. Form of Documents Delivered to Trustee........................9
Section 104. Acts of Holders..............................................10
Section 105. Notices, etc., to Trustee and Company........................10
Section 106. Notices to Holders; Waiver...................................11
Section 107. Conflict with Trust Indenture Act............................11
Section 108. Effect of Headings and Table of Contents.....................11
Section 109. Successors and Assigns.......................................11
Section 110. Separability Clause..........................................11
Section 111. Benefits of Indenture........................................11
Section 112. Governing Law................................................11
Section 113. Legal Holidays...............................................12
Section 114. Act of Holders when Securities are Denominated
in Different Currencies......................................12
Section 115. Monies of Different Currencies to be Segregated..............12
Section 116. Payment to be in Proper Currency.............................12
ARTICLE TWO--SECURITY FORMS...................................................13
Section 201. Forms Generally..............................................13
Section 202. Form of Face of Security.....................................13
Section 203. Form of Trustee's Certificate of Authentication..............15
Section 204. Form of Reverse of Security..................................15
ARTICLE THREE--THE SECURITIES.................................................18
Section 301. Title and Terms..............................................18
Section 302. Denominations................................................20
Section 303. Execution, Authentication, Delivery and Dating...............20
Section 304. Temporary Securities.........................................21
Section 305. Global Securities............................................22
Section 306. Registration, Registration of Transfer and Exchange..........23
Section 307. Mutilated, Destroyed, Lost and Stolen Securities.............24
Section 308. Payment of Interest; Interest Rights Preserved...............25
Section 309. Persons Deemed Owners........................................26
Section 310. Cancellation.................................................26
ARTICLE FOUR--SATISFACTION AND DISCHARGE......................................27
Section 401. Satisfaction and Discharge of Indenture......................27
Section 402. Application of Trust Money...................................28
ARTICLE FIVE--REMEDIES........................................................28
Section 501. Events of Default............................................28
Section 502. Acceleration of Maturity; Rescission and Annulment...........29
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee...................................................30
Section 504. Trustee May File Proofs of Claim.............................31
Section 505. Trustee May Enforce Claims Without Possession of
Securities...................................................32
Section 506. Application of Money Collected...............................32
Section 507. Limitation on Suits..........................................32
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.........................................33
Section 509. Restoration of Rights and Remedies...........................33
Section 510. Rights and Remedies Cumulative...............................33
Section 511. Delay or Omission Not Waiver.................................34
Section 512. Control by Holders...........................................34
Section 513. Waiver of Past Defaults......................................34
Exhibit 4.2 ii
Section 514. Undertaking for Costs........................................34
Section 515. Waiver of Stay or Extension Laws.............................35
Section 516. Exemption from Individual Liability..........................35
ARTICLE SIX--THE TRUSTEE......................................................35
Section 601. Certain Duties and Responsibilities..........................35
Section 602. Notice of Defaults...........................................36
Section 603. Certain Rights of Trustee....................................37
Section 604. Not Responsible for Recitals or Issuance of Securities.......37
Section 605. May Hold Securities..........................................38
Section 606. Money Held in Trust..........................................38
Section 607. Compensation and Reimbursement...............................38
Section 608. Disqualification; Conflicting Interests......................38
Section 609. Corporate Trustee Required; Eligibility......................39
Section 610. Resignation and Removal; Appointment of Successor............39
Section 611. Acceptance of Appointment by Successor.......................40
Section 612. Merger, Conversion, Consolidation or Succession to
Business.....................................................41
ARTICLE SEVEN--HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY..............42
Section 701. Company to Furnish Trustee Names and Addresses of Holders....42
Section 702. Preservation Of Information; Communications to Holders.......42
Section 703. Reports by Trustee...........................................43
Section 704. Reports by Company...........................................43
ARTICLE EIGHT--CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER..................44
Section 801. Company May Consolidate, etc., only on Certain Terms.........44
Section 802. Successor Corporation Substituted............................44
Section 803. Evidence to be Furnished Trustee.............................45
ARTICLE NINE--SUPPLEMENTAL INDENTURES.........................................45
Section 901. Supplemental Indentures without Consent of Holders...........45
Section 902. Supplemental Indentures with Consent of Holders..............46
Section 903. Execution of Supplemental Indentures.........................46
Section 904. Effect of Supplemental Indentures............................47
Section 905. Conformity with Trust Indenture Act..........................47
Section 906. Reference in Securities to Supplemental Indentures...........47
ARTICLE TEN--COVENANTS........................................................47
Section 1001. Payment of Principal, Premium and Interest..................47
Section 1002. Maintenance of Office or Agency.............................47
Section 1003. Money for Security Payments to be Held in Trust;
Appointment of Paying Agent.................................48
Section 1004. Statement as to Default.....................................49
Section 1005. Corporate Existence.........................................49
Section 1006. Limitation upon Liens.......................................49
Section 1007. Sale-Leaseback Transactions Relating to Principal Plants....51
Section 1008. Limitation Upon Funded Debt of Restricted Subsidiaries......53
Section 1009. Maintenance of Insurance....................................53
Section 1010. Waiver of Certain Covenants.................................54
ARTICLE ELEVEN--REDEMPTION OF SECURITIES......................................54
Section 1101. Right of Redemption.........................................54
Section 1102. Applicability of Article....................................54
Section 1103. Election to Redeem; Notice to Trustee.......................54
Section 1104. Selection by Trustee of Securities to be Redeemed...........54
Section 1105. Notice of Redemption........................................55
Section 1106. Deposit of Redemption Price.................................55
Section 1107. Securities Payable on Redemption Date.......................56
Exhibit 4.2 iii
Section 1108. Securities Redeemed in Part.................................56
ARTICLE TWELVE--SINKING FUND..................................................56
Section 1201. Sinking Fund Payments.......................................56
Section
. Satisfaction of Sinking Fund Payments with Securities.......57
Section 1203. Redemption of Securities for Sinking Fund...................57
ARTICLE THIRTEEN--DEFEASANCE AND COVENANT DEFEASANCE..........................57
Section 1301. Defeasance..................................................57
Section 1302. Covenant Defeasance.........................................58
Section 1303. Conditions to Defeasance or Covenant Defeasance.............58
Section 1304. Application of Funds........................................59
Section 1305. Reinstatement...............................................60
Exhibit 4.2 iv
THIS INDENTURE, dated as of ________, 200__, 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.
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.
"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.
"applicants" has the meaning specified in Section 702.
Exhibit 4.2 1
"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 or any officer authorized to act for
the board of directors.
"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 Exchange Act, 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 Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"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 of Directors, 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: _______________________________.
"Covenant Defeasance" has the meaning specified in Section 1302.
"Default" means any event which is, or after notice or lapse of time or
both, would become an Event of Default.
"Defaulted Interest" has the meaning specified in Section 308.
"Defeasance" has the meaning specified in Section 1301.
"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
Exhibit 4.2 2
successor Depositary shall have 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.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Funded Debt" means (A) 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; or (B)
indebtedness classified as "long-term indebtedness" in the financial statements
of the borrower most recently filed with the Commission pursuant to the Exchange
Act; 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 305, and bearing the legend prescribed in Section 305.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
Exhibit 4.2 3
"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.
"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, (i) 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 or (ii)
any Securities that the Company designates by one or more Authorizing
Resolutions or indentures supplemental hereto as constituting all or part of an
Issue.
"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) 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.
Exhibit 4.2 4
"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 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.
"Packaging Business" means the assets identified as the "Packaging Segment"
(or similar terminology generally describing the same operations) in the
financial statements most recently delivered by the Company to the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act, and any
assets substantially related to such assets that are acquired after the date of
such financial statements.
"Packaging Business Divestitures" means (i) the distribution (in the form
of a dividend) to stockholders of the Company of the capital stock of a
Subsidiary or Subsidiaries, substantially all of the assets of which consist of
all or any portion of the Packaging Business or (ii) the transfer of the capital
stock of a Subsidiary or Subsidiaries, substantially all of the assets of which
consist of all or any portion of the Packaging Business, or the transfer of all
or any portion of the Packaging Business, the consideration for such transfer
Exhibit 4.2 5
(including the liabilities assumed related thereto) being not less than the fair
market value (as reasonably determined by the Company) of such stock or assets.
"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 307 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 (i) any brewery, or any manufacturing, processing
or packaging plant, now owned or hereafter acquired by the Company or any
Subsidiary and located within the United States (but not including any (a)
brewery or plant of the Company or any Subsidiary which the Company has
determined, by Board Resolution, is not of material importance to the total
business conducted by the Company and its Subsidiaries or (b) any plant that the
Company shall have determined, by Board Resolution, is used primarily for
transportation, marketing or warehousing or (c) at the option of the Company,
any plant that (A) does not constitute part of the brewing operations of the
Company and its Subsidiaries and (B) has a net book value, as reflected on the
balance sheet contained in the Company's financial statements most recently
filed by the Company with the Commission pursuant to Section 13 or Section 15(d)
of the Exchange Act, of not more than $100,000,000), and (ii) any other facility
owned by the Company or any of its Subsidiaries that the Company shall, by Board
Resolution, designate as a Principal Plant. Following any determination,
designation or election referred to herein that a brewery or plant shall not be
included as a Principal Plant, the Company may, at its option, by Board
Resolutions, elect that such facility subsequently be included as a Principal
Plant.
"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 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
Exhibit 4.2 6
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.
"Required Currency" has the meaning specified in Section 116.
"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 shall elect, by Board Resolution, to be treated as a
Restricted Subsidiary, until such time as the Company may, by Board Resolution,
elect that such Subsidiary shall no longer be a Restricted Subsidiary,
successive such elections being permitted without restriction.
"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 306.
"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, and subject to the right of
the Board of Directors to specify in one or more Authorizing Resolutions that
the Securities issued pursuant to such Authorizing Resolutions shall constitute
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 308.
"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.
Exhibit 4.2 7
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect more than 50% of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest
in such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
subsidiaries or by one or more such Person's other subsidiaries.
"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.
"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, (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 or (z)
interests in funds consisting solely of such securities described in (x) and
(y), including funds managed by the Trustee of its Affiliates (including such
funds for which it or its affiliates receive fees in connection with such
management).
"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:
Exhibit 4.2 8
(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.
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.
Exhibit 4.2 9
(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 Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or take any such action, whether or not such Persons continue
to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
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
Exhibit 4.2 10
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.
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 and their successors
hereunder, any Paying Agent 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.
Exhibit 4.2 11
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.
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
Exhibit 4.2 12
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.
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 , 20 .]
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 Person 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
Exhibit 4.2 13
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, together with any interest on such
interest, 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 [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].
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 ______, 200__ (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 _________________, subject to any
subsequent issuances that may be authorized by subsequent Authorizing
Resolutions or supplemental indentures. 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.
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.
Exhibit 4.2 14
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.
Attest:
By By:
[Assistant] Secretary [title of Company Officer]
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
By
[reference to Authenticating Agent, if any] Authorized Officer
SECTION 204. Form of Reverse of Security.
[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 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:]
Exhibit 4.2 15
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.]
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to the Indenture or for the
appointment of a receiver or trustee, or for any other remedy under the
Indenture, 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 under the Indenture; (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.
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 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
Exhibit 4.2 16
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding to waive
compliance by the Company with certain provisions of this Indenture and
certain past defaults under the Indenture and their consequences. Any such
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].
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
Exhibit 4.2 17
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, 307, 906 or 1108, and subject to any subsequent issuances that
may be authorized by subsequent Authorizing Resolutions or supplemental
indentures);
(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 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
Exhibit 4.2 18
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.
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 or supplemental
indenture 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.
Exhibit 4.2 19
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 or supplemental indenture relating
thereto. The Trustee shall execute and deliver the supplemental indenture (if
any) 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;
(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) 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);
(4) An Opinion of Counsel (a) to the effect that (i) the Securities of
such Series, the Authorizing Resolution and the supplemental indenture (if
any) relating thereto comply or will comply with the requirements of this
Indenture and (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
enforceable in accordance with their terms, subject to (A) bankruptcy and
other laws affecting creditors' rights generally as in effect from time to
time, (B) limitations of generally applicable equitable principles and (C)
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; and
(5) 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.
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.
Exhibit 4.2 20
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.
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. Global 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 (or such other legend as may be
prescribed by the Depositary): "Unless and until it is exchanged in whole or in
Exhibit 4.2 21
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 Exchange Act and
any other applicable statute or regulation.
Beneficial owners of part or all of a Global Security shall be subject to
the rules of the Depositary as in effect from time to time. The Company, the
Trustee and the Paying Agent shall not be responsible for any acts or omissions
of the Depositary, for any Depositary records of beneficial interests or for any
transactions between the Depositary and beneficial owners.
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.
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 305, the Company shall
appoint a successor Depositary eligible under Section 305, with respect to the
Securities of such Series. If a successor Depositary eligible under Section 305
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 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,
Exhibit 4.2 22
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 this Section, 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.
SECTION 306. 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.
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 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
Exhibit 4.2 23
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.
At the option of the Holder (other than a Global Security), Securities of
any Issue 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.
SECTION 307. 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. If a Security is
replaced pursuant to Section 307, it shall cease to be Outstanding unless the
Exhibit 4.2 24
Company receives proof satisfactory to it that the replaced Security is held by
a protected purchaser, as defined in the New York Uniform Commercial Code.
SECTION 308. 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.
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, together
with any interest thereon (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 amount 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.
Exhibit 4.2 25
SECTION 309. 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 308) 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.
SECTION 310. 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 307 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 4.2 26
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 of money or
U.S. Governmental Obligations 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 and U.S. Governmental Obligations deposited with the Trustee
pursuant to Section 401 (or into which such money and U.S. Governmental
Obligations are reinvested) 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
and U.S. Governmental Obligations 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
Exhibit 4.2 27
(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
(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 one or more other Issues 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 a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company 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 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 of a voluntary case under the
United States federal bankruptcy laws, or the institution by the
Company 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 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 in furtherance of any such action.
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
Exhibit 4.2 28
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 the principal amount as may then be payable on
acceleration as provided in the terms thereof) of and accrued and unpaid
interest on 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 and
accrued and unpaid interest on 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 and accrued and unpaid interest on 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 the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of the acceleration.
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
Exhibit 4.2 29
(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 one or more Issues 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 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
Exhibit 4.2 30
(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 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)
Exhibit 4.2 31
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.
FOURTH: To the Company.
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 the
Securities, 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 308) 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 institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
Exhibit 4.2 32
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
(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.
Exhibit 4.2 33
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 Person, 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 Person, 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 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
Exhibit 4.2 34
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 4.2 35
(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.
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 investigation into such facts
or matters as it may see fit; and
Exhibit 4.2 36
(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, disbursements 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 the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities.
Exhibit 4.2 37
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 issued 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.
(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 (i) 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 or (ii) so long as there shall not have occurred and be continuing a
Default or Event of Default, by written notice from the Company to the Trustee.
(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
Exhibit 4.2 38
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 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 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, 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
Exhibit 4.2 39
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.
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
Exhibit 4.2 40
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 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
Exhibit 4.2 41
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 Exchange Act; or,
if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it will file 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
Exhibit 4.2 42
Section 13 of the Exchange Act 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 consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless:
(1) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance, transfer or lease the
properties and assets of the Company substantially as an entirety shall be
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, 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;
(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 is the surviving corporation or to any Packaging Business
Divestiture.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company 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
Exhibit 4.2 43
of, the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein and (2) 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.
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 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 Person 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 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 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
Exhibit 4.2 44
(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 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.
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
Exhibit 4.2 45
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. The
principal of (and premium, if any) and interest on Securities shall be
considered paid on the date due if the Paying Agents hold in accordance with
this Indenture on that date money, sufficient to pay all principal (and premium,
if any) and interest then due and the Paying Agents are not prohibited from
paying such money to the Holders on such date pursuant to the terms of 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 shall fail to
Exhibit 4.2 46
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.
Exhibit 4.2 47
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 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.
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.
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 consolidation) 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,
(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,
Exhibit 4.2 48
(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, mortgages 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 substantially all of
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 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, or
to the capital stock of a Restricted Subsidiary, the Company or such Restricted
Subsidiary, as the case may be, shall in such event be deemed to have created a
Exhibit 4.2 49
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 or such capital stock of Restricted Subsidiaries.
(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, guarantee,
sufferance, renewal, extension or replacement, the aggregate principal amount of
such indebtedness for money borrowed, when added to the fair market value of
property transferred in sale-leaseback transactions and not reacquired at such
time as permitted by Section 1007(c) and the aggregate principal 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 and except for any transaction with a state or local authority that
is required in connection with any program, law, statute or regulation that
provides financial or tax benefits not available without such transaction, 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 4.2 50
(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 an officer of the Company) 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 (or, if
the Company holds the net proceeds described below in cash or cash
equivalents, within two years)
(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 cancellation, (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 cancellation 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 principal amount of the fair market value of the property so
transferred and not reacquired at such time, 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
Exhibit 4.2 51
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 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 and (E) guarantees existing at the date of this
Indenture.
(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 principal amount of such Funded Debt which would otherwise be
subject to the foregoing restriction, together with the aggregate principal
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 and not reacquired at such time 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
Exhibit 4.2 52
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 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 50 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 4.2 53
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 Price.
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
Exhibit 4.2 54
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such on
the relevant Regular or Special Record Date according to their terms and the
provisions of Section 308.
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
Exhibit 4.2 55
Sinking Fund payment required to be made pursuant to Section 1201. Each such
Security so delivered or applied shall be credited for such purpose 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 satisfaction of the applicable conditions specified in Section 1303,
the Company shall be discharged from all of its obligations under the Securities
and under this Indenture with respect to the Securities, except for its
obligations under Sections 304, 306, 307, 607, 1002 and 1003 and this Article
Thirteen (referred to below as a "Defeasance").
SECTION 1302. Covenant Defeasance.
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 the 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 the Securities (referred to below as a
"Covenant Defeasance"). Such Covenant Defeasance means that, with respect to the
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 the Securities shall
thereafter be deemed not to be Outstanding for the purposes of any direction,
Exhibit 4.2 56
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with the provisions of Article Eight and 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 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. 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.
(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.
Exhibit 4.2 57
(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 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 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.
Exhibit 4.2 58
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. ________________________,
Trustee
By By
----------------------------------
William J. Kimmins, Jr.
Vice President and Treasurer
Exhibit 4.2 59