<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 27, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DAYTON HUDSON CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MINNESOTA 41-0215170
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
777 NICOLLET MALL
MINNEAPOLIS, MINNESOTA 55402
612/370-6948
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
STEPHEN C. KOWALKE
TREASURER
DAYTON HUDSON CORPORATION
777 NICOLLET MALL
MINNEAPOLIS, MINNESOTA 55402
612/370-6948
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
W. SMITH SHARPE, JR. TIMOTHY R. BAER
FAEGRE & BENSON LLP DAYTON HUDSON CORPORATION
2200 NORWEST CENTER 777 NICOLLET MALL
90 SOUTH SEVENTH STREET MINNEAPOLIS, MINNESOTA 55402
MINNEAPOLIS, MINNESOTA 55402
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF BEING OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES BEING REGISTERED(1) REGISTERED(2) PER UNIT OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Debt Securities, Preferred
Shares, Depositary Shares,
Common Stock, par value $.3333
per share, (3) and Securities
Warrants........................ $228,800,000 100% $228,800,000(5) $78,898
</TABLE>
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(1) Any securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(2) Includes such indeterminate number of Preferred Shares and shares of Common
Stock as may be issued at indeterminable prices, but with an aggregate
initial offering price not to exceed $228,800,000, plus such indeterminate
number of Preferred Shares as may be issued upon exercise of Securities
Warrants or in exchange for, or upon conversion of, Debt Securities or
other Preferred Shares registered hereunder for which no separate
consideration will be received, such indeterminate number of Depositary
Shares as may be issued in the event the Registrant elects to offer
fractional interests in Preferred Shares registered hereunder; and such
indeterminate number of shares of Common Stock as may be issued upon
exercise of Securities Warrants or in exchange for, or upon conversion of,
Debt Securities, Preferred Shares or Depositary Shares registered
hereunder.
(3) Associated with the Common Stock are preferred share purchase rights that
will not be exercisable or evidenced separately from the Common Stock prior
to the occurrence of certain events.
(4) Or the equivalent thereof in one or more foreign currencies or composite
currencies, including European Currency Units.
(5) No separate consideration will be received for Common Stock, Preferred
Shares or Depositary Shares that are issued upon conversion of Debt
Securities, Preferred Shares or Depositary Shares.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
Pursuant to Rule 429, the Prospectus contained herein also relates to Debt
Securities Preferred Shares, Depositary Shares, Common Stock, Securities
Warrants and Units registered on Form S-3, Registration No. 33-42364 and
Registration No. 333-389.
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<PAGE>
PROSPECTUS
DAYTON HUDSON CORPORATION
DEBT SECURITIES AND DEBT WARRANTS
PREFERRED SHARES AND PREFERRED SHARE WARRANTS
COMMON STOCK AND COMMON STOCK WARRANTS
UNITS
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Dayton Hudson Corporation (the "Corporation") intends to offer from time to
time in one or more series its unsecured debt securities (the "Debt
Securities"), warrants to purchase the Debt Securities ("Debt Warrants"),
shares of preferred stock (the "Preferred Shares"), interests in which may be
represented by depositary shares ("Depositary Shares"), shares of common
stock, $.3333 par value per share (the "Common Stock"), warrants to purchase
the Preferred Shares or Depositary Shares ("Preferred Share Warrants") or
warrants to purchase Common Stock ("Common Stock Warrants," and together with
the Debt Warrants and Preferred Share Warrants, the "Securities Warrants"),
with an aggregate initial public offering price (including the exercise price
of any Securities Warrants) of up to $1,000,000,000 or the equivalent thereof
in one or more foreign currencies or composite currencies, including European
Currency Units ("ECU"), on terms to be determined at the time of sale. The
Debt Securities, Preferred Shares, Depositary Shares, Common Stock and
Securities Warrants may be offered separately or as a part of units consisting
of one or more such securities ("Units," and together with the Debt
Securities, Preferred Shares, Depositary Shares, Common Stock and Securities
Warrants, the "Offered Securities"), in separate series, in amounts, at prices
and on terms to be set forth in one or more supplements to this Prospectus (a
"Prospectus Supplement").
Specific terms of the Offered Securities, including such terms as, where
applicable, (i) in the case of Debt Securities, the specific designation,
aggregate principal amount, currency, denominations, maturity, premium, rate
and time of payment of interest, terms for redemption at the option of the
Corporation or repayment at the option of the holder, terms for sinking fund
payments and the initial public offering price; (ii) in the case of Preferred
Shares, the specific title, any dividend, liquidation, redemption, conversion,
voting and other rights, and the initial public offering price and whether
interests in the Preferred Shares will be represented by Depositary Shares;
(iii) in the case of Common Stock, the number of shares or fractional
interests therein, the initial public offering price and other rights in
connection with the offer and sale of the Common Stock; and (iv) in the case
of Securities Warrants, where applicable, the duration, offering price,
exercise price and detachability, are set forth in the accompanying Prospectus
Supplement. Units may be issued in amounts, at prices, on terms and containing
such conditions, covenants and other provisions, and consisting of such
Offered Securities, as will be set forth in a Prospectus Supplement. The
Prospectus Supplement will also contain information, where applicable, about
certain United States federal income tax considerations relating to and any
listing on a securities exchange of the Offered Securities covered by the
Prospectus Supplement.
The Offered Securities may be offered directly, through agents designated
from time to time or to or through underwriters or dealers. If any agents or
underwriters are involved in the sale of any of the Offered Securities, their
names, and any applicable fee, commission, purchase price or discount
arrangements with them, will be set forth, or will be calculable from the
information set forth, in the Prospectus Supplement.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF OFFERED SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this Prospectus is , 1996.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the Securities and
Exchange Commission (the "Commission") are incorporated in and made a part of
this Prospectus by reference: (i) Annual Report on Form 10-K for the year ended
February 3, 1996 (which incorporates by reference certain portions of the
Corporation's 1995 Annual Report to Shareholders, including financial
statements and accompanying information, and certain portions of the
Corporation's definitive Notice and Proxy Statement for the Corporation's 1996
Annual Meeting of Shareholders); (ii) Quarterly Reports on Form 10-Q for the
quarters ended May 4, 1996 and August 3, 1996; (iii) Current Reports on Form 8-
K dated May 1, 1996, June 12, 1996 and September 11, 1996; (iv) Registration
Statement on Form 8-A filed with respect to Preferred Share Purchase Rights
dated September 12, 1996; and (v) Registration Statement on Form 8-A filed with
respect to the Common Stock.
All documents filed by the Corporation with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") subsequent to the date of this Prospectus and
prior to the termination of the offering of the Offered Securities offered
hereby shall be deemed to be incorporated by reference in this Prospectus and
to be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein or in the accompanying Prospectus Supplement modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
The Corporation will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the written or
oral request of such person, a copy of any or all of the information
incorporated herein by reference (other than exhibits, unless such exhibits are
specifically incorporated by reference in such documents). Written requests for
such copies should be directed to the Secretary, Dayton Hudson Corporation, 777
Nicollet Mall, Minneapolis, Minnesota 55402. Telephone requests may be directed
to 612/370-6948.
No person is authorized to give any information or to make any
representations other than those contained in this Prospectus or a Prospectus
Supplement in connection with the offering described herein and therein, and
any information or representations not contained herein or therein must not be
relied upon as having been authorized. This Prospectus may not be used to
consummate sales of Offered Securities unless accompanied by a Prospectus
Supplement. The delivery of this Prospectus and a Prospectus Supplement
relating to particular Offered Securities shall not constitute an offer of any
of the other Offered Securities covered by this Prospectus. The delivery of
this Prospectus or any Prospectus Supplement does not constitute an offer to
sell or a solicitation of an offer to buy the Offered Securities in any
circumstances in which such offer or solicitation of an offer to buy the
Offered Securities is unlawful.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the Exchange
Act and in accordance therewith files reports and other information with the
Commission. Such reports, proxy and information statements and other
information filed by the Corporation can be inspected and copied at the public
reference facilities of the Commission, Room 1024, 450 Fifth Street N.W.,
Washington, D.C. 20549, and at the regional offices of the Commission located
at Seven World Trade Center, Suite 1300, New York, New York 10048, and at 500
West Madison Street, Suite 1400, Chicago, Illinois 60661, and copies of such
materials can be obtained from the Public Reference Section of the Commission
at 450 Fifth Street N.W., Washington, D.C. 20549, at prescribed rates. Reports,
proxy and information statements and other information concerning the
Corporation can also be inspected at the offices of the New York Stock Exchange
at 20 Broad Street, New York, New York 10005, and at the offices of the Pacific
Stock Exchange at 301 Pine Street, San Francisco, California 94104.
2
<PAGE>
Additional information regarding the Corporation and the Offered Securities
offered hereby is contained in the Registration Statement and the exhibits
relating thereto in respect of the Offered Securities offered hereby, filed
with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). For further information pertaining to the Corporation and
the Offered Securities offered hereby, reference is made to the Registration
Statement and the exhibits thereto, which may be inspected without charge at
the office of the Commission at 450 Fifth Street N.W., Washington, D.C. 20549,
and copies thereof may be obtained from the Commission at prescribed rates.
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$," "dollars,"
"U.S. dollars," or "U.S. $").
THE CORPORATION
The Corporation is a national general merchandise retail company operating
through three separate operating divisions: Target upscale discount stores,
Mervyn's middle-market promotional department stores and the Department Store
Division which operates traditional department stores. At August 3, 1996, these
operating divisions operated 1,079 stores in 37 states.
The Corporation was incorporated in Minnesota in 1902. All references to the
"Corporation" herein relate to Dayton Hudson Corporation and its subsidiaries
and their predecessors unless otherwise indicated by the context. The
Corporation's principal executive offices are located at 777 Nicollet Mall,
Minneapolis, Minnesota 55402 (telephone 612/370-6948).
Additional information concerning the Corporation is included in the
documents incorporated by reference herein. See "Incorporation of Certain
Documents by Reference."
USE OF PROCEEDS
Unless otherwise specified in an applicable Prospectus Supplement, the net
proceeds from the sale of the Offered Securities offered hereby will be added
to the general funds of the Corporation and may be used to meet working capital
requirements, for capital expenditures relating to the construction and
fixturing of certain of the Corporation's new stores and remodeling of certain
of the Corporation's existing stores, to refinance certain debt, or to finance
acquisitions of real estate, other assets or companies. Pending such
applications, the funds may be invested in short-term marketable securities.
3
<PAGE>
BUSINESS
GENERAL
The data reported below detail the operations of the Corporation's business
segments.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
-----------------------------------------------------------
FEBRUARY 1, JANUARY 30, JANUARY 29, JANUARY 28, FEBRUARY 3,
1992 1993 1994 1995 1996*
----------- ----------- ----------- ----------- -----------
(MILLIONS OF DOLLARS)
<S> <C> <C> <C> <C> <C>
Revenues
Target................ $ 9,041 $10,393 $11,743 $13,600 $15,807
Mervyn's.............. 4,143 4,510 4,436 4,561 4,516
Department Store
Division............. 2,931 3,024 3,054 3,150 3,193
------- ------- ------- ------- -------
Total revenues...... $16,115 $17,927 $19,233 $21,311 $23,516
======= ======= ======= ======= =======
Operating profit
Target................ $ 458 $ 574 $ 662 $ 732 $ 719
Mervyn's.............. 284 284 179 206 100
Department Store
Division............. 168 228 268 270 184
------- ------- ------- ------- -------
Total operating
profit............. 910 1,086 1,109 1,208 1,003
Interest expense, net. 398 437 446 426 442
Corporate and other... 40 38 56 68 60
------- ------- ------- ------- -------
Earnings before income
taxes.................. $ 472 $ 611 $ 607 $ 714 $ 501
======= ======= ======= ======= =======
Operating profit as a
percent of revenues
Target................ 5.1% 5.5% 5.6% 5.4% 4.6%
Mervyn's.............. 6.9 6.3 4.0 4.5 2.2
Department Store
Division............. 5.7 7.5 8.8 8.6 5.8
EBITDA (earnings before
interest, income taxes,
depreciation and
amortization)
Target................ $ 667 $ 810 $ 926 $ 1,026 $ 1,047
Mervyn's.............. 401 419 325 351 250
Department Store
Division............. 268 332 372 378 297
Corporate and other... (39) (37) (55) (67) (57)
------- ------- ------- ------- -------
Total EBITDA........ $ 1,297 $ 1,524 $ 1,568 $ 1,688 $ 1,537
======= ======= ======= ======= =======
EBITDA as a percent of
revenues
Target................ 7.4% 7.8% 7.9% 7.5% 6.6%
Mervyn's.............. 9.7 9.3 7.3 7.7 5.5
Department Store
Division............. 9.1 11.0 12.2 12.0 9.3
Assets
Target................ $ 4,393 $ 4,913 $ 5,495 $ 6,247 $ 7,330
Mervyn's.............. 2,686 3,042 2,750 2,917 2,776
Department Store
Division............. 2,317 2,292 2,240 2,392 2,309
Corporate and other... 89 90 293 141 155
------- ------- ------- ------- -------
Total assets........ $ 9,485 $10,337 $10,778 $11,697 $12,570
======= ======= ======= ======= =======
Depreciation and
amortization
Target................ $ 209 $ 236 $ 264 $ 294 $ 328
Mervyn's.............. 117 135 146 145 150
Department Store
Division............. 100 104 104 108 113
Corporate and other... 1 1 1 1 3
------- ------- ------- ------- -------
Total depreciation
and amortization... $ 427 $ 476 $ 515 $ 548 $ 594
======= ======= ======= ======= =======
Capital Expenditures
Target................ $ 605 $ 571 $ 716 $ 842 $ 1,067
Mervyn's.............. 303 294 180 146 273
Department Store
Division............. 106 72 80 96 161
Corporate and other... 2 1 2 11 21
------- ------- ------- ------- -------
Total capital
expenditures....... $ 1,016 $ 938 $ 978 $ 1,095 $ 1,522
======= ======= ======= ======= =======
</TABLE>
4
<PAGE>
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*Consisted of 53 weeks.
In 1995, operating profit and EBITDA reflect a net reduction of $2 million,
$5 million and $3 million for Target, Mervyn's and the Department Store
Division, respectively, related to the sale of securitized accounts
receivable. Segment assets include accounts receivable sold to Dayton
Hudson Receivables Corporation, a wholly-owned subsidiary, in connection
with this transaction.
Operating profit is LIFO earnings from operations before corporate expense,
interest and income taxes.
TARGET
Target is an upscale discount chain which provides quality merchandise at
low prices in guest-friendly stores. Target operated 714 stores in 37 states
at August 3, 1996.
MERVYN'S
Mervyn's is a middle-market promotional department store chain emphasizing
name-brand and private-label casual apparel and home soft goods. Mervyn's
operated 299 stores in 16 states at August 3, 1996.
DEPARTMENT STORE DIVISION
The Department Store Division offers trend leadership, quality merchandise
and superior service. At August 3, 1996, the Department Store Division
operated 66 Dayton's, Hudson's and Marshall Field's stores in nine states.
RATIOS OF EARNINGS TO FIXED CHARGES AND TO FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS
The following are the consolidated ratios of earnings to fixed charges and
to fixed charges and preferred stock dividends for each of the years in the
five-year period ended February 3, 1996, and the six-month periods ended July
29, 1995 and August 3, 1996:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED SIX MONTHS ENDED
----------------------------------------------------------- ------------------
FEBRUARY 1, JANUARY 30, JANUARY 29, JANUARY 28, FEBRUARY 3, JULY 29, AUGUST 3,
1992 1993 1994 1995 1996 1995 1996
----------- ----------- ----------- ----------- ----------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges.......... 2.00x 2.22 2.19 2.43 1.94 1.22 1.86
Ratio of Earnings to
Fixed Charges and
Preferred Stock
Dividends.............. 1.85x 2.06 2.04 2.25 1.81 1.14 1.73
</TABLE>
For purposes of computing the ratios of earnings to fixed charges, income
before income taxes plus fixed charges less capitalized interest has been
divided by fixed charges. For purposes of computing the ratios of earnings to
fixed charges and preferred stock dividends, income before income taxes plus
fixed charges less capitalized interest has been divided by fixed charges and
pretax earnings required to cover preferred stock dividends. Fixed charges
consist of interest on short-term borrowings and long-term debt, amortization
of debt expense, capitalized interest and the interest portion of rental
expense. Pretax earnings required to cover preferred stock dividends have been
computed by dividing preferred stock dividends, adjusted for the tax benefits
related to the unallocated shares, by one minus the Corporation's effective
income tax rate.
DESCRIPTION OF DEBT SECURITIES
The following descriptions of the terms of the Debt Securities set forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered will be
described in the Prospectus Supplement relating to such Debt Securities.
The Debt Securities are to be issued under an Indenture (the "Indenture"),
between the Corporation and the trustee named in the applicable Prospectus
Supplement as trustee (the "Trustee"). The form of the Indenture
5
<PAGE>
is filed as an exhibit to the Registration Statement. The following summaries
of certain provisions of the Debt Securities and the Indenture do not purport
to be complete and are subject to, and are qualified in their entirety by
reference to, all of the provisions of the Indenture, including the definition
therein of certain terms. Section numbers below refer to provisions of the
Indenture. In the event that the Corporation issues Bearer Securities (as
defined in the Indenture), additional provisions of the Indenture relating to
such Bearer Securities will be discussed in the applicable Prospectus
Supplement.
GENERAL
The Debt Securities will be unsecured obligations of the Corporation.
The Indenture does not limit the amount of Debt Securities that may be
issued thereunder and provides that Debt Securities may be issued thereunder
from time to time in one or more series. (Section 301)
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for the following terms of the Debt
Securities: (i) the title of the Debt Securities; (ii) any limit on the
aggregate principal amount of the Debt Securities; (iii) the price (expressed
as a percentage of the aggregate principal amount thereof) at which the Debt
Securities will be issued; (iv) the date or dates on which the Debt Securities
will mature; (v) the rate or rates (which may be fixed or variable) per annum
at which the Debt Securities will bear interest, if any; (vi) the date from
which such interest, if any, on the Debt Securities will accrue, the Interest
Payment Dates on which such interest, if any, will be payable, the date on
which payment of such interest, if any, will commence and the Regular Record
Dates for such Interest Payment Dates, if any; (vii) the dates, if any, on
which and the price or prices at which the Debt Securities will, pursuant to
any mandatory sinking fund provisions, or may, pursuant to any optional
sinking fund provisions, be redeemed by the Corporation, and the other
detailed terms and provisions of such sinking fund; (viii) the date, if any,
after which and the price or prices at which the Debt Securities may, pursuant
to any optional redemption provisions, be redeemed at the option of the
Corporation or of the Holder thereof and the other detailed terms and
provisions of such optional redemption; (ix) the currency or currencies of
denomination and payment; (x) if the currency or currencies of payment are at
the Corporation's or Holder's election, the manner in which such election may
be made; (xi) the application of defeasance provisions to the Debt Securities;
(xii) any changes to the restrictive covenants included for the benefit of
Holders of the Debt Securities; (xiii) any additional Events of Default
provided with respect to the Debt Securities; and (xiv) whether the Debt
Securities will be issued in whole or in part in the form of one or more
Global Securities and, if so, the Depositary for such Global Securities.
(Section 301)
Principal, premium, if any, and interest, if any, will be payable, and the
Debt Securities will be transferable, at the Place of Payment designated for
such Debt Securities, provided that payment of interest may, at the option of
the Corporation, be made by check mailed to the address of the Person entitled
thereto as it appears in the Security Register or by wire transfer to an
account in such currency designated by such Person in writing not less than
ten days prior to the date of such payment. (Sections 305, 307, 1002)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Debt Securities will be issued only in fully registered form, without
coupons, in denominations of $1,000 or any integral multiple thereof. (Section
302) No service charge will be made for any registration of transfer or
exchange of the Debt Securities, but the Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. (Section 305)
Debt Securities may be issued under the Indenture as Original Issue Discount
Securities to be offered and sold at a substantial discount below their stated
principal amount. Federal income tax consequences and other special
considerations applicable to any such Original Issue Discount Securities will
be described in the Prospectus Supplement relating thereto. "Original Issue
Discount Security" means any security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof, upon the occurrence of an Event of
Default and the continuation thereof. (Section 101)
Unless otherwise indicated in the Prospectus Supplement relating to the Debt
Securities, the covenants contained in the Indenture and the Debt Securities
would not necessarily afford Holders of the Debt Securities protection in the
event of a highly leveraged or other transaction involving the Corporation
that may adversely affect Holders.
6
<PAGE>
The Indenture provides that any corporation into which the Trustee is merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee is a party,
or any corporation succeeding to all or substantially all of the corporate
trust business of the Trustee shall, with the written approval of the
Corporation, be the successor Trustee under the Indenture, provided such
corporation shall be otherwise qualified and eligible under the Indenture. If
the Trustee's successor by merger, conversion, consolidation or sale shall not
have received the written approval of the Corporation, such successor shall
resign within 20 days after such merger, conversion, consolidation or sale and
such vacancy in the office of the Trustee shall be filled by the Corporation in
the manner specified in Section 610 of the Indenture. (Sections 610 and 612)
RESTRICTED AND UNRESTRICTED SUBSIDIARIES
The various restrictive provisions of the Indenture applicable to the
Corporation and its Restricted Subsidiaries do not apply to Unrestricted
Subsidiaries. The assets and indebtedness of Unrestricted Subsidiaries are not
consolidated with those of the Corporation and its Restricted Subsidiaries in
calculating Consolidated Net Tangible Assets under the Indenture and
investments by the Corporation or by its Restricted Subsidiaries in
Unrestricted Subsidiaries are excluded in computing Consolidated Net Tangible
Assets. "Unrestricted Subsidiaries" are those Subsidiaries defined as such by
the Indenture, i.e., Eighth Street Development Company, Dayton Hudson Capital
Corporation and Dayton Hudson Receivables Corporation, certain finance
Subsidiaries acquired or formed subsequent to the date of the Indenture, those
Subsidiaries which are designated as Unrestricted Subsidiaries by the Board of
Directors from time to time pursuant to the Indenture (in each case, unless and
until designated as Restricted Subsidiaries by the Board of Directors pursuant
to the Indenture) and any Subsidiary, a majority of the voting stock of which
is owned by Unrestricted Subsidiaries. "Restricted Subsidiaries" are all
Subsidiaries other than Unrestricted Subsidiaries. A "Wholly-owned Restricted
Subsidiary" is a Restricted Subsidiary of which all of the outstanding capital
stock (except directors' qualifying shares) is owned by the Corporation and its
other Wholly-owned Restricted Subsidiaries. (Section 101)
An Unrestricted Subsidiary may not be designated a Restricted Subsidiary
unless the Corporation would be permitted immediately thereafter to incur
additional Secured Funded Debt and Attributable Debt under the terms of the
Indenture. (Section 1010(a))
RESTRICTIONS ON SECURED FUNDED DEBT
The Corporation may not, and may not permit any Restricted Subsidiary to,
issue, assume, guarantee, incur or create any Secured Funded Debt without first
making effective provision whereby the Debt Securities shall be secured equally
and ratably with (or prior to) such Secured Funded Debt, unless immediately
thereafter the sum of the aggregate amount of all outstanding Secured Funded
Debt of the Corporation and its Restricted Subsidiaries together with all
Attributable Debt of the Corporation and its Restricted Subsidiaries in respect
of sale and leaseback transactions does not exceed 5% of Consolidated Net
Tangible Assets. Compliance with the requirements of the foregoing restriction
shall be determined without regard to (i) Secured Funded Debt of a Restricted
Subsidiary owing to the Corporation or a Wholly-owned Restricted Subsidiary,
(ii) Secured Funded Debt resulting from the Mortgage of property of the
Corporation or any Restricted Subsidiary in favor of the United States or any
State or any instrumentality thereof to secure partial, progress, advance or
other payments, (iii) Secured Funded Debt secured by a Mortgage on property of,
or on any shares of stock or Indebtedness of, any corporation existing at the
time such corporation becomes a Subsidiary, (iv) Secured Funded Debt secured by
a Mortgage on property, shares of stock or Indebtedness existing at or incurred
within 120 days of the time of acquisition thereof (including acquisition
through merger or consolidation), purchase money Mortgages and construction
Mortgages, (v) Secured Funded Debt secured by a Mortgage incurred or assumed in
connection with an issuance of revenue bonds the interest on which is exempt
from federal income tax pursuant to Section 103(b) and related Sections of the
Internal Revenue Code of 1986, as amended, or (vi) any extension, renewal or
refunding, in whole or in part, of any Secured Funded Debt permitted under the
restrictions described in the first sentence of this paragraph or of any
Secured Funded Debt of any Restricted Subsidiary outstanding at February 3,
1996 or of any corporation outstanding at the time such corporation became a
Restricted Subsidiary. (Section 1008)
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"Secured Funded Debt" means Funded Debt which is secured by a Mortgage upon
any assets of the Corporation or a Restricted Subsidiary. (Section 101)
"Funded Debt" means Indebtedness maturing more than 12 months after the time
of computation thereof, guarantees of Funded Debt or of dividends of others
(except guarantees in connection with the sale or discount of accounts
receivable, trade acceptances and other paper arising in the ordinary course of
business) and Funded Debt secured by a Mortgage on property of the Corporation
or any Restricted Subsidiary, whether or not assumed, and in the case of any
Subsidiary all Preferred Stock of such Subsidiary. Funded Debt does not include
any amount in respect of obligations under leases (or guarantees thereof),
whether or not such obligations would be included as liabilities on a
consolidated balance sheet of the Corporation and its Restricted Subsidiaries.
(Section 101)
"Attributable Debt" means (i) the balance sheet liability amount of capital
leases (capital lease obligations and current portion thereof) determined under
GAAP, plus (ii) the amount of future minimum lease payments under operating
leases required to be disclosed by GAAP, less any amounts required to be paid
on account of maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges, discounted using the methodology used to calculate
the present value of operating lease payments in the Corporation's most recent
Annual Report to Shareholders that reflects such a calculation. (Section 101)
"Consolidated Net Tangible Assets" means the total amount of assets on a
consolidated balance sheet of the Corporation and its Restricted Subsidiaries
(less applicable reserves and other properly deductible items and after
excluding any investments made in Unrestricted Subsidiaries or in corporations
while they were Unrestricted Subsidiaries but which are not Subsidiaries at the
time of computation) after deducting (i) all liabilities and liability items,
including amounts in respect of obligations under leases (or guarantees
thereof) which under GAAP would be included on such balance sheet, except
Funded Debt, capital stock and surplus, surplus reserves and provisions for
deferred income taxes and (ii) goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles. (Section 101)
RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS
Neither the Corporation nor any Restricted Subsidiary may enter into any sale
and leaseback transaction involving any Operating Property which has been or is
to be sold or transferred more than 120 days after the acquisition thereof or
the completion of construction and commencement of full operations thereof,
unless (a) the Corporation or such Restricted Subsidiary could create Secured
Funded Debt on such property pursuant to Section 1008 (see "Restrictions on
Secured Funded Debt" above) in an amount equal to the Attributable Debt with
respect to the sale and leaseback transaction without equally and ratably
securing the Debt Securities or (b) the Corporation, within 120 days, applies
to the retirement of its Secured Funded Debt an amount equal to the greater of
(i) the net proceeds of the sale of an Operating Property leased pursuant to
such arrangement or (ii) the fair value of the Operating Property so leased
(subject to credits for certain voluntary retirements of Funded Debt). This
restriction will not apply to any sale and leaseback transaction (a) between
the Corporation and a Restricted Subsidiary or between Restricted Subsidiaries,
or (b) involving a lease for a period of three years or less. (Section 1009)
"Operating Property" is defined as any retail store, distribution center or
other property related to the general retail business of the Corporation or any
Subsidiary, parking facilities, and any equipment located at or comprising a
part of any such property having a net book value in excess of .35% of
Consolidated Net Tangible Assets (which has been owned and operated by the
Corporation or any Restricted Subsidiary for more than 90 days). (Section 101)
RESTRICTIONS ON MERGER AND SALE OF ASSETS
The Corporation may consolidate with or merge into any other corporation, or
transfer substantially all its properties and assets to any Person, and any
other Person may consolidate with or merge into the Corporation, or transfer
substantially all its properties and assets to the Corporation, provided that
(i) the Person (if other than the Corporation) formed by or resulting from any
such consolidation or merger or which shall have received the transfer of such
property and assets shall assume payment of the principal of, premium, if any,
and interest on the Debt Securities and the performance and observance of the
covenants of the Indenture, and (ii) except in the
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case of a merger or consolidation of the Corporation and a Restricted
Subsidiary, either (a) the Holders of a majority in aggregate principal amount
of the Outstanding Debt Securities of each series shall have consented thereto
or (b) immediately thereafter under the terms of the Indenture the successor
corporation would be permitted to become liable for an additional amount of
Secured Funded Debt. (Section 801) Notwithstanding the provisions summarized in
this paragraph, the Corporation may, without complying with such provisions,
sell all of its property and assets to another corporation if, immediately
after giving effect to such sale, such corporation is a Wholly-owned Restricted
Subsidiary of the Corporation and the Corporation would be permitted to become
liable for an additional amount of Secured Funded Debt. (Section 803)
MODIFICATION AND WAIVER
Certain modifications and amendments of the Indenture may be made by the
Corporation and the Trustee only with the consent of the Holders of a majority
in aggregate principal amount of the Outstanding Debt Securities of each series
affected by the modification or amendment, provided that no such modification
or amendment may, without the consent of the Holder of each Outstanding Debt
Security affected thereby: (i) change the stated maturity date of the principal
of, or any installment of principal of or interest on, any such Debt Security;
(ii) reduce the principal amount of, or the interest (or premium, if any) on,
any such Debt Security (including in the case of an Original Issue Discount
Security the amount payable upon acceleration of the Maturity thereof); (iii)
change the Place of Payment where, or the coin or currency in which, any
principal or interest (or premium, if any) on any such Debt Security is
payable; (iv) impair the right to institute suit for the enforcement of any
payment on or with respect to any such Debt Security; (v) reduce the above-
stated percentage of Outstanding Debt Securities of any series the consent of
the Holders of which is necessary to modify or amend the Indenture; or (vi)
modify the foregoing requirements or reduce the percentage of aggregate
principal amount of Outstanding Debt Securities of any series necessary for
waiver of compliance with certain provisions of the Indenture or for waiver of
certain defaults. (Section 902)
The Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of any series may on behalf of the Holders of all Debt
Securities of that series waive, insofar as that series is concerned,
compliance by the Corporation with certain restrictive provisions of the
Indenture. (Section 1012) The Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of any series may on behalf of the
Holders of all Debt Securities of that series waive any past default under the
Indenture with respect to that series, except a default in the payment of the
principal of (or premium, if any) or interest on any Debt Security of that
series or in respect of a provision which under the Indenture cannot be
modified or amended without the consent of the Holder of each Outstanding Debt
Security of that series affected. (Section 513)
EVENTS OF DEFAULT
The Indenture defines an Event of Default with respect to any series of Debt
Securities as being any one of the following events: (i) default for 30 days in
any payment of interest on such series; (ii) default in any payment of
principal of (or premium, if any, on) such series when due; (iii) default in
the payment of any sinking fund installment with respect to such series when
due; (iv) default for 90 days after appropriate notice in performance of any
other covenant or warranty in the Indenture (other than a covenant or warranty
included in the Indenture solely for the benefit of series of Debt Securities
other than that series); (v) default under any evidence of Indebtedness for
money borrowed (including a default with respect to Debt Securities other than
that series) or under any Mortgage, indenture or instrument under which any
such Indebtedness is issued or secured (including the Indenture), which results
in acceleration of the maturity of such Indebtedness in an outstanding
principal amount in excess of $20 million, if such acceleration is not annulled
(or if such Indebtedness is not discharged) within 10 days after written notice
as provided in the Indenture; (vi) certain events in bankruptcy, insolvency or
reorganization; or (vii) any other Event of Default provided with respect to
Debt Securities of that series. In case an Event of Default shall occur and be
continuing with respect to any series of Debt Securities, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Debt Securities of that series may declare the principal of such series (or, if
the Debt Securities of that series are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms of that series) to be
due and payable.
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Any Event of Default with respect to a particular series of Debt Securities may
be waived by the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of such series, except in each case a failure to
pay principal of (or premium, if any) or interest on such Debt Security or in
respect of a provision which under the Indenture cannot be modified or amended
without the consent of the Holder of each Outstanding Debt Security of that
series affected. (Sections 501, 502, 513)
Reference is made to the Prospectus Supplement relating to each series of
Debt Securities which are Original Issue Discount Securities for the particular
provisions relating to acceleration of the Maturity of a portion of the
principal amount of such Original Issue Discount Securities upon the occurrence
of an Event of Default and the continuation thereof.
The Indenture requires the Corporation to file annually with the Trustee an
Officers' Certificate as to the absence of certain defaults under the terms of
the Indenture. (Section 1011) The Indenture provides that the Trustee may
withhold notice to the Holders of the Debt Securities of any default (except in
payment of principal (or premium, if any) or interest or any sinking fund
installment) if it considers it in the interest of the Holders of the Debt
Securities to do so. (Section 602)
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the
Indenture provides that the Trustee shall be under no obligation to exercise
any of its rights or powers under the Indenture at the request, order or
direction of the Holders of the Debt Securities unless such Holders shall have
offered to the Trustee reasonable indemnity. (Sections 601, 603) Subject to
such provisions for indemnification and certain other rights of the Trustee,
the Indenture provides that the Holders of a majority in aggregate principal
amount of the Outstanding Debt Securities of any series affected 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 with respect to the Debt Securities of such series. (Sections 512,
603)
No Holder of any Debt Security of any series will have any right to institute
any proceeding with respect to the Indenture or for any remedy thereunder,
unless such Holder shall have previously given to the Trustee written notice of
a continuing Event of Default with respect to Debt Securities of that series
and unless also the Holders of at least 25% in aggregate principal amount of
the Outstanding Debt Securities of that series shall have made written request,
and offered reasonable indemnity, to the Trustee to institute such proceeding
as trustee, and the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of the Outstanding Debt Securities of
that series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days. (Section 507) However, the Holder of
any Debt Security will have an absolute right to receive payment of the
principal of (and premium, if any) and interest on such Debt Security on or
after the due dates expressed in such Debt Security and to institute suit for
the enforcement of any such payment. (Section 508)
DEFEASANCE
Defeasance and Discharge. If the terms of a series of Debt Securities so
provide and the Corporation deposits or causes to be deposited with the Trustee
as trust funds in trust money and/or Government Obligations, as hereinafter
defined, which through the payment of interest and principal in respect thereof
in accordance with their terms will provide money in an amount sufficient to
pay and discharge (i) the principal of (and premium, if any) and each
installment of principal (and premium, if any) and interest on the Outstanding
Debt Securities of such series on the Stated Maturity of such principal or
installment of principal or interest (or on the Redemption Date of the
Outstanding Debt Securities of such series if the Corporation has elected to
redeem such Outstanding Debt Securities in accordance with Section 1102 of the
Indenture), and (ii) any mandatory (or, if applicable, optional) sinking fund
payments applicable to the Outstanding Debt Securities of such series on the
day on which such payments are due and payable, then the Indenture will cease
to be of further effect with respect to such series (except for certain
obligations to compensate, reimburse and indemnify the Trustee, to register the
transfer or exchange of Debt Securities, to replace stolen, lost or mutilated
Debt Securities, to maintain paying agencies and to hold monies for payment in
trust), and the Corporation will be deemed to have satisfied and discharged
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the Indenture with respect to such series. (Section 403) In the event of any
such defeasance, holders of Debt
Securities of such series would be able to look only to such trust fund for
payment of principal (and premium, if any) and interest, if any, on their Debt
Securities. The term "Government Obligations" as used herein shall mean
securities of the government which issued the currency in which the Debt
Securities of such series are denominated and/or in which interest is payable
or of government agencies backed by the full faith and credit of such
government. (Section 101)
Under current federal income tax law, such defeasance will be treated as a
taxable exchange of the related Debt Securities for an interest in the trust.
As a consequence, each holder of such Debt Securities will recognize gain or
loss equal to the difference between the holder's cost or other tax basis for
the Debt Securities and the value of the holder's interest in the trust, and
thereafter will be required to include in income a share of the income, gain or
loss of the trust, including gain or loss recognized in connection with any
substitution of collateral, as described below. Prospective investors are urged
to consult their own tax advisors as to the specific consequences of such a
defeasance.
Defeasance of Certain Covenants and Certain Events of Default. If the terms
of the Debt Securities of any series so provide, the Corporation may omit to
comply with certain restrictive covenants in Sections 801, 803 and 804
(Consolidation, Merger, Conveyance, Transfer or Lease), and Sections 1005
(Maintenance of Properties), 1007 (Payment of Taxes and Other Claims), 1008
(Restriction on the Creation of Secured Funded Debt), 1009 (Restriction on Sale
and Lease-Back Transactions) and 1010 (Restriction on Permitting Unrestricted
Subsidiaries to become Restricted Subsidiaries), and Sections 501(4), 501(5),
501(6), 501(7) and 501(8) (if Section 501(8) is specified in the Prospectus
Supplement or Prospectus Supplements relating to such Debt Securities), as
described in clauses (iv) through (vii) under "Events of Default" above, shall
not be deemed to be Events of Default under the Indenture with respect to such
series, upon the deposit with the Trustee, in trust, of money and/or Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay and discharge (i) the principal of (and premium, if any) and
each installment of principal (and premium, if any) and interest on the
Outstanding Debt Securities of such series on the Stated Maturity of such
principal or installment of principal or interest (or on the Redemption Date of
the Outstanding Debt Securities of such series if the Corporation has elected
to redeem such Outstanding Debt Securities in accordance with Section 1102 of
the Indenture) and (ii) any mandatory (or, if applicable, optional) sinking
fund payments applicable to the Outstanding Debt Securities of such series on
the day on which such payments are due and payable. The obligations of the
Corporation under the Indenture and the Debt Securities other than with respect
to the covenants referred to above and the Events of Default other than the
Events of Default referred to above shall remain in full force and effect.
(Section 1501)
In the event the Corporation exercises its option to omit compliance with
certain covenants of the Indenture with respect to the Debt Securities of any
series as described above and the Debt Securities of such series are declared
due and payable because of the occurrence of any Event of Default other than
Events of Default described in clauses (iv) through (vii) under "Events of
Default" above, the amount of money and/or Government Obligations on deposit
with the Trustee will be sufficient to pay amounts due on the Debt Securities
of such series on their Stated Maturity or Redemption Date, but may not be
sufficient to pay amounts due on such Debt Securities at the time of the
acceleration resulting from such Event of Default. However, the Corporation
shall remain liable for such payments. (Section 1501)
Substitution of Collateral. If the terms of a series of Debt Securities so
provide, the Corporation will be permitted at any time to withdraw any money or
Government Obligations deposited pursuant to the foregoing defeasance
provisions, provided that the Corporation in substitution therefor
simultaneously deposits money and/or Government Obligations which would then be
sufficient to satisfy the Corporation's payment obligations in respect of the
Debt Securities in the manner contemplated by such defeasance provisions.
(Section 402)
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DESCRIPTION OF PREFERRED SHARES
The following description of the terms of the Preferred Shares sets forth
certain general terms and provisions of the Preferred Shares to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Shares offered by any Prospectus Supplement will be described in the
Prospectus Supplement relating to such series of the Preferred Shares. If so
indicated in the Prospectus Supplement, the terms of any such series may differ
from the terms set forth below. The description of certain provisions of the
Preferred Shares set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Corporation's Restated Articles of Incorporation and the
Certificate of Designation, Preferences and Rights ("Certificate of
Designation") relating to each series of the Preferred Shares.
GENERAL
Pursuant to the Corporation's Restated Articles of Incorporation, the Board
of Directors of the Corporation has the authority, without further shareholder
action, to issue from time to time a maximum of 5,000,000 shares of preferred
stock, par value $.01 per share ("Preferred Stock"), including shares issued or
reserved for issuance, in one or more series and with such terms and at such
times and for such consideration as the Board of Directors of the Corporation
may determine. The authority of the Board of Directors of the Corporation
includes the determination or fixing of the following with respect to shares of
any series thereof: (i) the number of shares and designation or title thereof;
(ii) rights as to dividends; (iii) whether and upon what terms the shares are
to be redeemable; (iv) the rights of the holders upon the dissolution, or upon
the distribution of assets, of the Corporation; (v) whether and upon what terms
the shares shall have a purchase, retirement or sinking fund; (vi) whether and
upon what terms the shares are to be convertible; (vii) the voting rights, if
any, which shall apply; and (viii) any other preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions of such series. At August 3, 1996, 392,084 shares
of Preferred Stock were outstanding. Shares of Preferred Stock purchased,
redeemed or converted by the Corporation shall be retired and canceled and
restored to the status of authorized but unissued shares of Preferred Stock,
without designation as to series, and may thereafter be issued.
As described under "Description of Depositary Shares," the Corporation may,
at its option, elect to offer Depositary Shares evidenced by depositary
receipts ("Depositary Receipts"), each representing a fractional interest (to
be specified in the Prospectus Supplement relating to the particular series of
the Preferred Shares) in a share of the particular series of the Preferred
Shares issued and deposited with a Depositary (as defined below).
The Preferred Shares shall have the dividend, liquidation, redemption, voting
and conversion rights set forth below unless otherwise provided in the
Prospectus Supplement relating to a particular series of the Preferred Shares.
Reference is made to the Prospectus Supplement relating to the particular
series of the Preferred Shares offered thereby for specific terms, including
(i) the title and liquidation preference of such Preferred Shares and the
number of shares offered; (ii) the initial public offering price at which such
Preferred Shares will be issued; (iii) the dividend rate or rates (or method of
calculation), the dividend periods, the dates on which dividends shall be
payable and whether such dividends shall be cumulative or noncumulative and, if
cumulative, the dates from which dividends shall commence to cumulate; (iv) any
redemption or sinking fund provisions; (v) any conversion provisions; (vi)
whether the Corporation has elected to offer Depositary Shares as described
under "Description of Depositary Shares"; and (vii) any additional dividend,
liquidation, redemption, sinking fund and other rights, preferences,
privileges, limitations and restrictions.
The Preferred Shares will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of the Preferred Shares, each series of the Preferred Shares
will rank on a parity in all respects with the outstanding shares of each other
series of the Preferred Shares and will rank senior to the Corporation's Series
B ESOP Convertible Preferred Stock and Corporation's Series A Junior
Participating Preferred Stock described below. The Preferred Shares will have
no preemptive rights to
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subscribe for any additional securities which may be issued by the
Corporation. Unless otherwise specified in the applicable Prospectus
Supplement, First Chicago Trust Company of New York will be the transfer agent
and registrar for the Preferred Shares and any Depositary Shares.
DIVIDENDS
The holders of the Preferred Shares of each series will be entitled to
receive, when, as and if declared by the Board of Directors of the Corporation
or a duly authorized committee thereof, out of funds legally available
therefor, cash dividends at such rates and on such dates as will be set forth
in the Prospectus Supplement relating to such series. Such rates may be fixed
or variable or both. If variable, the formula used for determining the
dividend rate for each dividend period will be set forth in the Prospectus
Supplement. Dividends will be payable to the holders of record as they appear
on the stock books of the Corporation on such record dates as will be fixed by
the Board of Directors of the Corporation or a duly authorized committee
thereof.
Dividends on any series of the Preferred Shares may be cumulative or
noncumulative, as provided in the applicable Prospectus Supplement. If the
Board of Directors of the Corporation fails to declare a dividend payable on a
dividend payment date on any series of the Preferred Shares for which
dividends are noncumulative ("Noncumulative Preferred Shares"), then the
holders of such series of the Preferred Shares will have no right to receive a
dividend in respect of the dividend period ending on such dividend payment
date, and the Corporation will have no obligation to pay the dividend accrued
for such period, whether or not dividends on such series are declared payable
on any future dividend payment dates.
No full dividends will be declared or paid or set apart for payment on any
stock of the Corporation ranking, as to dividends, on a parity with or junior
to the Preferred Shares for any period unless full dividends on the Preferred
Shares of each series (including any accumulated dividends) have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment. When dividends are not paid in
full upon any series of Preferred Shares and any Preferred Stock ranking on a
parity as to dividends with the Preferred Shares, all dividends declared or
made upon Preferred Shares of each series and any Preferred Stock ranking on a
parity as to dividends with the Preferred Shares shall be declared pro rata so
that the amount of dividends declared per share on Preferred Shares of each
series and such Preferred Stock shall in all cases bear to each other the same
ratio that accrued dividends per share (which, in the case of Noncumulative
Preferred Shares, shall not include any accumulation in respect of unpaid
dividends for prior dividend periods) on shares of each series of the
Preferred Shares and such Preferred Stock bear to each other. Except as
provided in the preceding sentence, no dividend (other than dividends or
distributions paid in shares of, or options, warrants or rights to subscribe
for or purchase shares of, Common Stock or any other stock of the Corporation
ranking junior to the Preferred Shares as to dividends and upon liquidation)
shall be declared or paid or set aside for payment or other distribution
declared or made upon the Common Stock or any other stock of the Corporation
ranking junior to or on a parity with the Preferred Shares as to dividends or
upon liquidation, nor shall any Common Stock nor any other stock of the
Corporation ranking junior to or on a parity with the Preferred Shares as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by the Corporation
(except by conversion into or exchange for stock of the Corporation ranking
junior to the Preferred Shares as to dividends and upon liquidation) unless,
in each case, the full dividends on each series of the Preferred Shares shall
have been paid or declared and set aside for payment. No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on any series of the Preferred Shares which may be in arrears.
REDEMPTION
A series of the Preferred Shares may be redeemable, in whole or in part, at
the option of the Corporation, and may be subject to mandatory redemption
pursuant to a sinking fund or otherwise, in each case upon terms, at the times
and at the redemption prices set forth in the Prospectus Supplement relating
to such series. Preferred
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Shares redeemed by the Corporation will be restored to the status of
authorized but unissued shares of Preferred Stock.
The Prospectus Supplement relating to a series of the Preferred Shares which
is subject to mandatory redemption will specify the number of shares of such
series of the Preferred Shares which shall be redeemed by the Corporation in
each year commencing after a date to be specified, at a redemption price per
share to be specified, together with an amount equal to all accrued and unpaid
dividends thereon to the date of redemption. The redemption price may be
payable in cash or other property, as specified in the Prospectus Supplement
relating to such series of the Preferred Shares. If the redemption price is
payable only from the net proceeds of the issuance of capital stock of the
Corporation, the terms of such series may provide that, if no such capital
stock shall have been issued or to the extent the net proceeds from any
issuance are insufficient to pay in full the aggregate redemption price then
due, the applicable shares of such series of the Preferred Shares shall
automatically and mandatorily be converted into shares of the applicable
capital stock of the Corporation pursuant to conversion provisions specified
in the Prospectus Supplement relating to such series of the Preferred Shares.
If fewer than all of the outstanding shares of any series of the Preferred
Shares are to be redeemed, the number of shares to be redeemed will be
determined by the Board of Directors of the Corporation and such shares shall
be redeemed pro rata from the holders of record of such shares in proportion
to the number of such shares held by such holders (with adjustments to avoid
redemption of fractional shares).
Notwithstanding the foregoing, if any dividends, including any accumulation,
on Preferred Shares of any series are in arrears, no Preferred Shares of such
series shall be redeemed unless all outstanding Preferred Shares of such
series are simultaneously redeemed, and the Corporation shall not purchase or
otherwise acquire any Preferred Shares of such series; provided, however, that
the foregoing shall not prevent the purchase or acquisition of Preferred
Shares of such series pursuant to a purchase or exchange offer provided such
offer is made on the same terms to all holders of such series of the Preferred
Shares.
Unless otherwise specified in the applicable Prospectus Supplement, notice
of redemption shall be given by mailing the same to each record holder of the
shares to be redeemed, not less than 40 nor more than 70 days prior to the
date fixed for redemption thereof, to the respective addresses of such holders
as the same shall appear on the stock books of the Corporation. Each such
notice shall state (i) the redemption date; (ii) the number of shares and
series of the Preferred Shares to be redeemed; (iii) the redemption price;
(iv) the place or places where certificates for such Preferred Shares are to
be surrendered for payment of the redemption price; (v) that dividends on the
shares to be redeemed will cease to accrue on such redemption date; and (vi)
the date upon which the holder's conversion rights as to such shares, if any,
shall terminate. If fewer than all shares of any series of the Preferred
Shares held by any holder are to be redeemed, the notice mailed to such holder
shall also specify the number of shares to be redeemed from such holder.
If notice of redemption has been given, from and after the redemption date
for the shares of the series of the Preferred Shares called for redemption
(unless default shall be made by the Corporation in providing money for the
payment of the redemption price of the shares so called for redemption),
dividends on the Preferred Shares so called for redemption shall cease to
accrue and such shares shall no longer be deemed to be outstanding, and all
rights of the holders thereof as shareholders of the Corporation (except the
right to receive the redemption price) shall cease. Upon surrender in
accordance with such notice of the certificates representing any shares so
redeemed (properly endorsed or assigned for transfer, if the Board of
Directors of the Corporation shall so require and the notice shall so state),
the redemption price set forth above shall be paid out of funds provided by
the Corporation. If fewer than all of the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
In the event that a redemption described above is deemed to be a "tender
offer" within the meaning of Rule 14e-1 under the Exchange Act, the
Corporation will comply with all applicable provisions of the Exchange Act.
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CONVERSION
The Prospectus Supplement relating to a series of the Preferred Shares which
is convertible will state the terms on which shares of that series are
convertible into shares of Common Stock or a series of Preferred Stock.
RIGHTS UPON LIQUIDATION
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of shares of each series of the
Preferred Shares and any Preferred Stock ranking on a parity with such series
of Preferred Shares upon liquidation will be entitled to receive out of the
assets of the Corporation available for distribution to shareholders, before
any distribution of assets is made to holders of the Common Stock or any other
class or series of stock of the Corporation ranking junior to such series of
the Preferred Shares upon liquidation, liquidation distributions in the amount
set forth in the Prospectus Supplement relating to such series of the
Preferred Shares plus an amount equal to the sum of all accrued and unpaid
dividends (whether or not earned or declared) for the then current dividend
period and, if such series of the Preferred Shares is cumulative, for all
dividend periods prior thereto. Neither the sale of all or substantially all
of the property and assets of the Corporation, nor the merger or consolidation
of the Corporation into or with any other corporation nor the merger or
consolidation of any other corporation into or with the Corporation, shall be
deemed to be a dissolution, liquidation or winding up. If, upon any voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, the
assets of the Corporation available for distribution to the holders of the
Preferred Shares of any series and any other shares of stock of the
Corporation ranking as to any such distribution on a parity with such series
of the Preferred Shares shall be insufficient to pay in full all amounts to
which such holders are entitled, no such distribution shall be made on account
of any shares of any other series of the Preferred Shares or other securities
of the Corporation ranking as to any such distribution on a parity with the
Preferred Shares of such series upon such dissolution, liquidation or winding
up unless proportionate distributive amounts shall be paid on account of the
Preferred Shares of such series, ratably, in proportion to the full
distributive amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up. After
payment of the full amount of the liquidation distribution to which they are
entitled, the holders of such series of the Preferred Shares will have no
right or claim to any of the remaining assets of the Corporation.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of the Preferred Shares, or except as expressly required by
applicable law, the holders of the Preferred Shares will not be entitled to
vote. In the event the Corporation issues shares of a series of the Preferred
Shares, unless otherwise indicated in the Prospectus Supplement relating to
such series, each share will be entitled to one vote on matters on which
holders of such series are entitled to vote. However, as more fully described
under "Description of Depositary Shares," if the Corporation elects to provide
for the issuance of Depositary Shares representing fractional interests in a
share of such series of the Preferred Shares, the holders of each such
Depositary Share will, in effect, be entitled through the Depositary to such
fraction of a vote, rather than a full vote. In the case of any series of
Preferred Shares having one vote per share on matters on which holders of such
series are entitled to vote, the voting power of such series, on matters on
which holders of such series and holders of any other series of Preferred
Shares or a series of Preferred Stock are entitled to vote as a single class,
will depend on the number of shares in such series, not the aggregate
liquidation preference or initial offering price of the shares of such series
of the Preferred Shares.
So long as any Preferred Shares of any series remain outstanding, the
Corporation will not, without the consent of the holders of the outstanding
Preferred Shares of such series and outstanding shares of all series of
Preferred Stock ranking on a parity with the Preferred Shares of such series
either as to dividends or the distribution of assets upon liquidation,
dissolution or winding up and upon which like voting rights have been
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conferred and are then exercisable, by a vote of at least two-thirds of all
such outstanding Preferred Shares and shares of Preferred Stock voting
together as a class, given in person or by proxy, either in writing or at a
meeting, (i) authorize, create or issue, or increase the authorized or issued
amount of, any class or series of stock ranking prior to the Preferred Shares
with respect to payment of dividends or the distribution of assets on
liquidation, dissolution or winding up, or (ii) amend, alter or repeal,
whether by merger, consolidation or otherwise, the provisions of the
Corporation's Restated Articles of Incorporation or of the resolutions
contained in a Certificate of Designation for any series of the Preferred
Shares designating such series of the Preferred Shares and the preferences and
relative, participating, optional or other special rights and qualifications,
limitations and restrictions thereof, so as to materially and adversely affect
any right, preference, privilege or voting power of the Preferred Shares or
the holders thereof; provided, however, that any increase in the amount of the
authorized Preferred Stock or the creation and issuance of other series of
Preferred Stock, or any increase in the amount of authorized shares of any
series of Preferred Stock, in each case ranking on a parity with or junior to
the Preferred Shares with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up will not be
deemed to materially and adversely affect such rights, preferences, privileges
or voting powers.
OUTSTANDING PREFERRED STOCK
The Corporation has established the terms of two series of Preferred Stock:
the Series A Junior Participating Preferred Stock (the "Series A Preferred
Stock") which is described more fully below in "Description of Common Stock--
Rights Agreement;" and the Series B ESOP Convertible Preferred Stock (the
"Series B Preferred Stock"). Shares of Series B Preferred Stock are the only
shares of Preferred Stock that have been issued to date. Unless otherwise
specified in the applicable Prospectus Supplement, the Preferred Shares will
rank in all respects senior to the outstanding Series B Preferred Stock. The
Common Stock of the Corporation, including the Common Stock that may be issued
as Offered Securities or upon conversion or exercise of Offered Securities,
will be subject to any prior rights of the Preferred Stock then outstanding or
thereafter issued. Therefore, the rights of the outstanding Preferred Stock,
described below, and any Preferred Stock that may be subsequently issued, may
limit the rights of the holders of the Common Stock of the Corporation. At
August 3, 1996, the Corporation had outstanding 392,084 shares of Series B
Preferred Stock.
All outstanding shares of Series B Preferred Stock are held of record by a
trustee acting on behalf of the Dayton Hudson Corporation Supplemental
Retirement, Savings, and Employee Stock Ownership Plan, or any successor to
such plan (the "Plan"). The Series B Preferred Stock provides for cumulative
quarterly dividends equal to $56.20 per annum, subject to adjustment. The
Series B Preferred Stock is subject to redemption, in whole or in part, at the
option of the Corporation at any time after January 19, 2000 at a price equal
to $864.60 per share plus accrued and unpaid dividends thereon to the date
fixed for redemption (the "Redemption Price"). In addition, the Corporation
may redeem, in whole or in part, the Series B Preferred Stock at any time
after a change in any statute, rule or regulation which has the effect of
limiting or making unavailable to the Corporation all or any of the tax
deductions for certain amounts paid on the Series B Preferred Stock at a price
equal to the higher of the Redemption Price and the per share fair market
value of the Series B Preferred Stock (determined as set forth in the
Certificate of Designation for the Series B Preferred Stock). The Corporation
shall redeem the Series B Preferred Stock in the event the Plan is terminated
or the employee stock ownership feature of the Plan is terminated or
eliminated from the Plan at a price equal to the higher of the Redemption
Price and the per share fair market value of the Series B Preferred Stock. The
Series B Preferred Stock may be redeemed in whole or in part at the option of
the holder thereof in certain circumstances related to (i) the payment by the
holder of indebtedness incurred by or for the benefit of the Plan or (ii)
distributions required to be made by the holder under the Plan.
The Series B Preferred Stock is mandatorily convertible, without any further
action on the part of the Corporation or the holder thereof, into Common Stock
at the then applicable conversion price (as defined in the Certificate of
Designation for the Series B Preferred Stock) when record ownership of the
shares of Series B Preferred Stock is transferred to any person other than a
successor trustee under the Plan. In addition, a holder of
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Series B Preferred Stock is entitled, at any time prior to the date fixed for
redemption, to convert shares of Series B Preferred Stock held by such holder
into shares of Common Stock at the then applicable conversion price. The
Series B Preferred Stock does not have preemptive rights.
In the event of voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, the holders of the Series B Preferred Stock are
entitled to receive out of the assets of the Corporation available for
distribution to shareholders, before any distribution is made to holders of
Common Stock, $864.60 per share, plus accrued and unpaid dividends. The
holders of Series B Preferred Stock shall be entitled to vote on all matters
submitted to a vote of the shareholders of the Corporation, voting together
with the holders of voting capital stock of the Corporation as one class. In
addition, the vote of at least two-thirds of the outstanding shares of Series
B Preferred Stock is necessary to adopt any alteration, amendment or repeal of
any provision of the Restated Articles of Incorporation or the Certificate of
Designation for the Series B Preferred Stock if such amendment, alteration or
repeal would alter or change the powers, preferences or special rights of the
shares of the Series B Preferred Stock as to affect them adversely. The vote
of a majority of the outstanding shares of Series B Preferred Stock is also
necessary for increases in the capital of the Corporation allocable to the
Common Stock if, as a result thereof, the surplus of the Corporation for
purposes of the Minnesota Business Corporation Act would be less than the
amount of dividends that would accrue on the then outstanding Series B
Preferred Stock during the following three years. Except as otherwise required
by law or set forth above, holders of Series B Preferred Stock have no special
voting rights.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares and Depositary Receipts does not purport to be complete and is subject
to and qualified in its entirety by reference to the Deposit Agreement and
Depositary Receipts relating to each series of the Preferred Shares which will
be filed with the Commission at or prior to the time of the offering of such
series of the Preferred Shares.
GENERAL
The Corporation may, at its option, elect to offer fractional interests in
Preferred Shares, rather than full Preferred Shares. In the event such option
is exercised, the Corporation will provide for the issuance by a Depositary to
the public of Depositary Receipts evidencing Depositary Shares, each of which
will represent a fractional interest (to be set forth in the Prospectus
Supplement relating to a particular series of the Preferred Shares) in a share
of a particular series of the Preferred Shares as described below.
The shares of any series of the Preferred Shares underlying the Depositary
Shares will be deposited under a separate deposit agreement (the "Deposit
Agreement") between the Corporation and a bank or trust company selected by
the Corporation having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000 (the "Depositary"). The
Prospectus Supplement relating to a series of Depositary Shares will set forth
the name and address of the Depositary. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fractional interest in a Preferred Share underlying such
Depositary Share, to all the rights and preferences of the Preferred Shares
underlying such Depositary Share (including dividend, voting, redemption,
conversion and liquidation rights).
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Corporation, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts
but not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will
be exchangeable for definitive Depositary Receipts at the Corporation's
expense.
Upon surrender of the Depositary Receipts at the principal office of the
Depositary (unless the related Depositary Shares have previously been called
for redemption), the owner of the Depositary Shares evidenced
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thereby is entitled to delivery at such office, to or upon his order, of the
number of Preferred Shares and any money or other property represented by such
Depositary Shares. Partial Preferred Shares will not be issued. If the
Depositary Receipts delivered by the holder evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the number of
whole Preferred Shares to be withdrawn, the Depositary will deliver to such
holder at the same time a new Depositary Receipt evidencing such excess number
of Depositary Shares. Holders of Preferred Shares thus withdrawn will not
thereafter be entitled to deposit such shares under the Deposit Agreement or
to receive Depositary Shares therefor. The Corporation does not expect that
there will be any public trading market for the Preferred Shares except as
represented by the Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Shares to the record
holders of Depositary Shares relating to such Preferred Shares in proportion
to the numbers of such Depositary Shares owned by such holders on the relevant
record date. The Depositary shall distribute only such amount, however, as can
be distributed without attributing to any holder of Depositary Shares a
fraction of one cent, and any balance not so distributed shall be added to and
treated as part of the next sum received by the Depositary for distribution to
record holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Corporation, sell such property and distribute the net proceeds from such
sale to such holders.
The Deposit Agreement will also contain provisions relating to the manner in
which any subscription or similar rights offered by the Corporation to holders
of the Preferred Shares shall be made available to holders of Depositary
Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Shares underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the
proceeds received by the Depositary resulting from the redemption, in whole or
in part, of such series of the Preferred Shares held by the Depositary. The
Depositary shall mail notice of redemption not less than 30 and not more than
60 days prior to the date fixed for redemption to the record holders of the
Depositary Shares to be so redeemed at their respective addresses appearing in
the Depositary's books. The redemption price per Depositary Share will be
equal to the applicable fraction of the redemption price per share payable
with respect to such series of the Preferred Shares. Whenever the Corporation
redeems Preferred Shares held by the Depositary, the Depositary will redeem as
of the same redemption date the number of Depositary Shares relating to the
Preferred Shares so redeemed. If less than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by lot or pro
rata as may be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which
the holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
VOTING THE PREFERRED SHARES
Upon receipt of notice of any meeting at which the holders of the Preferred
Shares are entitled to vote, the Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Shares relating to such Preferred Shares. Each record holder of such
Depositary Shares on the record date (which will be the same date as the
record date for the Preferred Shares) will be entitled to instruct the
Depositary as to
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the exercise of the voting rights pertaining to the number of shares of
Preferred Shares underlying such holder's Depositary Shares. The Depositary
will endeavor, insofar as practicable, to vote the number of Preferred Shares
underlying such Depositary Shares in accordance with such instructions, and
the Corporation will agree to take all action which may be deemed necessary by
the Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting Preferred Shares to the extent it does not receive
specific instructions from the holders of Depositary Shares relating to such
Preferred Shares.
TAXATION
Owners of Depositary Shares will be treated for federal income tax purposes
as if they were owners of the Preferred Shares represented by such Depositary
Shares and, accordingly, will be entitled to take into account for federal
income tax purposes income and deductions to which they would be entitled if
they were holders of such Preferred Shares. In addition, (i) no gain or loss
will be recognized for federal income tax purposes upon the withdrawal of
Preferred Shares in exchange for Depositary Shares as provided in the Deposit
Agreement, (ii) the tax basis of each Preferred Share to an exchanging owner
of Depositary Shares will, upon such exchange, be the same as the aggregate
tax basis of the Depositary Shares exchanged therefor, and (iii) the holding
period for the Preferred Shares in the hands of an exchanging owner of
Depositary Shares who held such Depositary Shares as a capital asset at the
time of the exchange thereof for Preferred Shares will include the period
during which such person owned such Depositary Shares.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Corporation and the Depositary. However, any amendment which
materially and adversely alters the rights of the existing holders of
Depositary Shares will not be effective unless such amendment has been
approved by the record holders of at least a majority of the Depositary Shares
then outstanding. A Deposit Agreement may be terminated by the Corporation or
the Depositary only if (i) all outstanding Depositary Shares relating thereto
have been redeemed or (ii) there has been a final distribution in respect of
the Preferred Shares of the relevant series in connection with any
liquidation, dissolution or winding up of the Corporation and such
distribution has been distributed to the holders of the related Depositary
Shares.
CHARGES OF DEPOSITARY
The Corporation will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Corporation will pay charges of the Depositary in connection with the initial
deposit of the Preferred Shares and any redemption of the Preferred Shares.
Holders of Depositary Shares will pay other transfer and other taxes and
governmental charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from the Corporation which are delivered to the Depositary
and which the Corporation is required to furnish to the holders of the
Preferred Shares.
Neither the Depositary nor the Corporation will be liable if it is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Corporation
and the Depositary under the Deposit Agreement will be limited to performance
in good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares
or Preferred Shares unless satisfactory indemnity is furnished. They may rely
upon written advice of counsel or accountants, or information provided by
persons presenting Preferred Shares for deposit, holders of Depositary Shares
or other persons believed to be competent and on documents believed to be
genuine.
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RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Corporation
notice of its election to do so, and the Corporation may at any time remove
the Depositary, any such resignation or removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment.
Such successor Depositary must be appointed within 60 days after delivery of
the notice of resignation or removal and must be a bank or trust company
having its principal office in the United States and having a combined capital
and surplus of at least $50,000,000.
DESCRIPTION OF COMMON STOCK
The following description of the terms of the Common Stock sets forth
certain general terms and provisions of the Common Stock to which any
Prospectus Supplement may pertain. The description of certain provisions of
the Common Stock set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Corporation's Restated Articles of Incorporation and bylaws
and the Certificate of Designation relating to the Series A Preferred Stock.
GENERAL
The Board of Directors of the Corporation is authorized to issue a maximum
of 1,500,000,000 shares of Common Stock. As of August 3, 1996, 216,731,031
shares of Common Stock were issued and outstanding. Subject to any prior
rights of any Preferred Stock then outstanding, holders of the Common Stock
are entitled to receive such dividends as are declared by the Board of
Directors of the Corporation out of funds legally available therefor. Subject
to the rights, if any, of any Preferred Stock then outstanding, all voting
rights are vested in the holders of Common Stock, each share being entitled to
one vote. Subject to any prior rights of any such Preferred Stock, in the
event of liquidation, dissolution or winding up of the Corporation, holders of
shares of Common Stock are entitled to receive pro rata any assets
distributable to shareholders in respect of shares held by them. Holders of
shares of Common Stock do not have any preemptive right to subscribe for any
additional securities which may be issued by the Corporation. The outstanding
shares of Common Stock are fully paid and nonassessable, and any shares of
Common Stock issued as Offered Securities and any shares of Common Stock
issuable upon exercise of Common Stock Warrants or the conversion of Debt
Securities or Preferred Shares that are convertible into Common Stock will be
fully paid and nonassessable. The transfer agent and registrar for the Common
Stock is First Chicago Trust Company of New York. Each share of Common Stock
also includes a right to purchase certain Preferred Stock. See "Rights
Agreement" below.
ANTI-TAKEOVER PROVISIONS OF THE ARTICLES OF INCORPORATION AND BYLAWS
The Corporation's Restated Articles of Incorporation contain certain
provisions that may reduce the likelihood of a change in management or voting
control of the Corporation without the consent of the Board of Directors.
These provisions could have the effect of delaying, deterring or preventing
tender offers or takeover attempts that some or a majority of the
Corporation's shareholders might consider to be in the shareholders' best
interests, including tender offers or attempts that might result in a premium
over the market price for the Common Stock.
Fair Price Provision. Article IV of the Restated Articles of Incorporation
of the Corporation provides that certain transactions ("business
combinations") with certain beneficial owners of 10% or more of the voting
capital stock of the Corporation ("interested shareholders") require, in
addition to any affirmative vote required by law, the affirmative vote of not
less than 75% of the votes entitled to be cast by the holders of all then
outstanding shares of voting capital stock of the Corporation, voting as a
single class. Business combinations include, without limitation, any merger,
consolidation, or statutory exchange of shares of the Corporation with an
interested shareholder; any sale, lease, pledge, or other disposition to or
from an interested shareholder or the Corporation of any assets of the
Corporation or the interested shareholder, respectively, with a value equal to
or greater than 10% of the book value of the consolidated assets of the
Corporation; the adoption of any plan for the liquidation or dissolution of
the Corporation proposed by or on behalf of an interested shareholder; and any
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transaction that has the effect of increasing the proportionate share of
capital stock of the Corporation beneficially owned by an interested
shareholder. An affirmative vote by the shareholders is not required to
approve a business combination under Article IV if the business combination
has been approved by a majority of those directors who were members of the
Board of Directors prior to the time that the interested shareholder involved
in the business combination became an interested shareholder or whose election
or nomination was approved by a majority of such directors ("continuing
directors"). An affirmative vote is also not required if the business
combination meets certain conditions specified in Article IV, including,
without limitation, that certain minimum consideration be received in the
business combination by holders of capital stock of the Corporation, that the
interested shareholder not acquire any additional shares of capital stock of
the Corporation after becoming an interested shareholder (except as approved
by the continuing directors), and that a proxy or information statement
describing the proposed business combination be mailed to all holders of
capital stock of the Corporation as least 30 days prior to the consummation of
the business combination. The affirmative vote of the holders of not less than
75% of the votes entitled to be cast by the holders of then outstanding shares
of voting stock of the Corporation, voting together as a single class, is
required to amend or repeal, or adopt any provisions inconsistent with,
Article IV of the Restated Articles of Incorporation.
Preferred Stock. In addition to the Series B Preferred Stock discussed above
and the Series A Preferred Stock discussed below, the Corporation's Restated
Articles of Incorporation permit the Board of Directors to issue Preferred
Stock at any time without shareholder approval. Preferred stock is sometimes
used to discourage or make more difficult attempts to take control of a
company by means of a merger, tender offer, proxy contest or otherwise through
the issuance without shareholder approval of shares with supervoting rights or
other features that could thwart a takeover by reducing the ability of the
suitor to acquire the necessary voting shares to obtain control.
Classified Board. Pursuant to Article VI of the Restated Articles of
Incorporation, directors of the Corporation are divided into three classes and
elected for staggered terms. At each annual meeting of shareholders
approximately one third of the directors is elected to serve a three-year
term. Directors serving staggered terms can be removed from office only upon
the affirmative vote of not less than 75% of the votes entitled to be cast by
the holders of all then outstanding shares of voting stock of the Corporation,
voting together as a single class. The affirmative vote of not less than 75%
of the votes entitled to be cast by the holders of all of the outstanding
shares of voting stock of the Corporation, voting together as a single class,
is required to amend or repeal, or adopt any provisions inconsistent with,
this provision of the Restated Articles of Incorporation.
Nomination Procedures. Article VI of the Corporation's Restated Articles of
Incorporation also establishes procedures with regard to the nomination, other
than by or at the direction of the Board of Directors, of candidates for
election as directors. In general, notice must be received by the Secretary of
the Corporation not less than 60 days prior to meetings of the shareholders of
the Corporation.
Amendment of Bylaws. The Corporation's bylaws give the Board of Directors
the power to adopt, amend and repeal the bylaws, subject to limitations on
such power contained in the Minnesota Business Corporation Act and subject to
the power of the shareholders to change or repeal the bylaws.
RIGHTS AGREEMENT
Each share of the Corporation's Common Stock, including those that may be
issued as Offered Securities or upon conversion or exercise of Offered
Securities, is accompanied by one preferred share purchase right (a "Right").
Once exercisable, each Right entitles the registered holder to purchase one
three-hundredth of a share of the Series A Preferred Stock. Until a Right is
exercised, the holder of a Right, as such, will have no rights as a
shareholder of the Corporation including, without limitation, the right to
vote or receive dividends. The description and terms of the Rights are set
forth in the Rights Agreement, dated as of September 11, 1996, between the
Corporation and First Chicago Trust Company of New York, as Rights Agent.
The Rights trade automatically with shares of Common Stock and become
exercisable only under the circumstances described below. The Rights are
designed to protect the interests of the Corporation and its shareholders
against coercive takeover tactics. The purpose of the Rights is to encourage
potential acquirors to
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negotiate with the Corporation's Board of Directors prior to attempting a
takeover and to give the Board leverage in negotiating on behalf of all
shareholders the terms of any proposed takeover. The Rights may, but are not
intended to, deter takeover proposals.
Shares of Series A Preferred Stock purchasable upon exercise of the Rights
will rank junior to all other series of the Corporation's Preferred Stock,
including the Preferred Shares, and will not be redeemable. Each share of
Series A Preferred Stock will, subject to the rights of senior securities of
the Corporation, including outstanding Preferred Shares, if any, be entitled
to a preferential cumulative quarterly dividend payment equal to the greater
of $3.00 per share or 300 times the quarterly dividend declared per share of
Common Stock. Upon the liquidation of the Corporation, the holders of the
Series A Preferred Stock will, subject to the rights of such senior
securities, be entitled to a preferential liquidation payment equal to the
greater of $300 per share plus all accrued and unpaid dividends or 300 times
the payment made per share of Common Stock. Finally, in the event of any
merger, consolidation, statutory share exchange or other similar transaction,
each share of Series A Preferred Stock will, subject to the rights of such
senior securities, be entitled to receive 300 times the amount received per
share of Common Stock. These rights of the Series A Preferred Stock are
protected by customary antidilution provisions. Each share of Series A
Preferred Stock will have 300 votes per share and, except as otherwise
required by law, will vote together with the Common Stock.
The purchase price for each one three-hundredth of a share of Series A
Preferred Stock is $100.00. The purchase price is subject to adjustment upon
the occurrence of certain events, including stock dividends on the Series A
Preferred Stock or issuance of warrants for, or securities convertible on
certain terms into, shares of Series A Preferred Stock. The number of Rights
outstanding and the number of shares of Series A Preferred Stock issuable upon
the exercise of the Rights are subject to adjustment in the event of a stock
split of, or a stock dividend on, Common Stock.
The Rights will become exercisable following a "distribution date." A
distribution date will occur 15 days after a person or group acquires 20% or
more of the outstanding shares of Common Stock or a person or group announces
an offer, which, if successful, would result in the acquisition of 30% or more
of the outstanding shares of Common Stock (the Board may delay the
distribution date following such an offer until the person or group actually
acquires at least 20% of the outstanding shares of Common Stock). The Rights
have certain additional features that will be triggered upon the occurrence of
specified events:
1. If a person or group acquires at least 20% of the outstanding shares
of Common Stock, the Rights permit holders of the Rights, other than such
person or group, to acquire Common Stock at 50% of market value. In
addition, if a person or group acquires at least 20% of the outstanding
shares of Common Stock, the Board of Directors may, at any time prior to
the acquisition by a person or group of 50% or more of the outstanding
shares of Common Stock, exchange all or part of the Rights (other than
Rights which have become void under the terms of the Rights Agreement) for
Common Stock or equivalent securities at an exchange ratio per Right equal
to the result obtained by dividing the exercise price of a Right by the
current per share market price of the Common Stock, subject to adjustment.
2. In the event of certain business combinations involving the
Corporation or the sale of 50% or more of the assets or earning power of
the Corporation, the Rights permit holders of the Rights to purchase the
stock of the acquiror at 50% of market value.
At any time prior to the acquisition by a person or group of 20% or more of
the outstanding shares of Common Stock and in certain circumstances within 20
days after such acquisition, the Board of Directors may redeem the Rights in
whole, but not in part, at a price of $.01 per Right (the "Redemption Price").
The redemption of the Rights may be made effective at such time, on such basis
and with such conditions as the Board of Directors in its sole discretion may
establish. Immediately upon any redemption of the Rights, the right to
exercise such Rights will terminate and the only remaining right of the
holders of Rights will be to receive the Redemption Price. In addition, the
shareholders of the Corporation can, under certain circumstances, compel the
Board of Directors to redeem the Rights even if the Board of Directors
believes that a tender offer of the nature described in the next sentence is
not in the shareholders' best interests. A person making a cash tender offer
for all of the Corporation's outstanding capital stock and satisfying certain
other conditions could require a shareholders
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meeting to vote upon a resolution requesting that the Board of Directors redeem
the Rights to allow the completion of that tender offer or another cash tender
offer for all of the Corporation's capital stock at a price not less than that
contained in the original tender offer without being affected by the Rights. If
the Corporation's shareholders, by a two-thirds vote of the outstanding voting
power of the shares of the Corporation, approve such a resolution, and certain
other conditions are satisfied, the Rights must be redeemed by the Board and
would not affect the completion of the tender offer.
The Rights will expire on September 26, 2001, unless earlier redeemed by the
Corporation. The terms of the Rights may be amended by the Board of Directors
without the consent of the holders of the Rights if such amendment cures
ambiguities or corrects or supplements defective provisions or does not
adversely affect the interests of the holders of the Rights. Otherwise, the
terms of the Rights may be amended only with the consent of the holders of a
majority of the shares of Common Stock voting for or against such amendment at
a meeting of the Corporation's shareholders.
DESCRIPTION OF SECURITIES WARRANTS
The Corporation may issue Securities Warrants for the purchase of Debt
Securities, Preferred Shares, Depositary Shares or Common Stock. Securities
Warrants may be issued independently or together with Debt Securities,
Preferred Shares, Depositary Shares or Common Stock offered by any Prospectus
Supplement and may be attached to or separate from such Debt Securities,
Preferred Shares, Depositary Shares or Common Stock. Each series of Securities
Warrants will be issued under a separate warrant agreement (a "Securities
Warrant Agreement") to be entered into between the Corporation and a bank or
trust company, as Securities Warrant Agent, all as set forth in the Prospectus
Supplement relating to the particular issue of offered Securities Warrants. The
Securities Warrant Agent will act solely as an agent of the Corporation in
connection with the Securities Warrant Certificates and will not assume any
obligation or relationship of agency or trust for or with any holders of
Securities Warrant Certificates or beneficial owners of Securities Warrants.
Copies of the forms of Securities Warrant Agreements, including the forms of
Securities Warrant Certificates representing the Securities Warrants, are filed
as exhibits to the Registration Statement to which this Prospectus pertains.
The following summaries of certain provisions of the forms of Securities
Warrant Agreements and Securities Warrant Certificates do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Securities Warrant Agreements and the Securities
Warrant Certificates.
GENERAL
If Securities Warrants are offered, the applicable Prospectus Supplement will
describe the terms of such Securities Warrants, including, in the case of
Securities Warrants for the purchase of Debt Securities, the following where
applicable: (i) the offering price; (ii) the currencies in which such
Securities Warrants are being offered; (iii) the designation, aggregate
principal amount, currencies, denominations and terms of the series of Debt
Securities purchasable upon exercise of such Securities Warrants; (iv) the
designation and terms of any series of Debt Securities, Preferred Shares or
Depositary Shares with which such Securities Warrants are being offered and the
number of such Securities Warrants being offered with each such Debt Security,
Preferred Share, Depositary Share or share of Common Stock; (v) the date on and
after which such Securities Warrants and the related Common Stock or series of
Debt Securities, Preferred Shares or Depositary Shares will be transferable
separately; (vi) the principal amount of the series of Debt Securities
purchasable upon exercise of each such Securities Warrant and the price at
which and currencies in which such principal amount of Debt Securities of such
series may be purchased upon such exercise; (vii) the date on which the right
to exercise such Securities Warrants shall commence and the date (the
"Expiration Date") on which such right shall expire; (viii) United States
federal income tax consequences; and (ix) any other terms of such Securities
Warrants. Securities Warrants for the purchase of Debt Securities will be in
registered form only.
In the case of Securities Warrants for the purchase of Preferred Shares,
Depositary Shares or Common Stock, the applicable Prospectus Supplement will
describe the terms of such Securities Warrants, including the following where
applicable: (i) the offering price; (ii) the aggregate number of shares
purchasable upon exercise
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of such Securities Warrants and, in the case of Securities Warrants for
Preferred Shares or Depositary Shares, the designation, aggregate number and
terms of the series of Preferred Shares purchasable upon exercise of such
Securities Warrants or underlying the Depositary Shares purchasable upon
exercise of such Securities Warrants; (iii) the designation and terms of the
series of Debt Securities, Preferred Shares or Depositary Shares with which
such Securities Warrants are being offered and the number of such Securities
Warrants being offered with each such Debt Security, Preferred Share,
Depositary Share or share of Common Stock; (iv) the date on and after which
such Securities Warrants and the related Common Stock or series of Debt
Securities, Preferred Shares or Depositary Shares will be transferable
separately; (v) the number of Preferred Shares, Depositary Shares or shares of
Common Stock purchasable upon exercise of each such Securities Warrant and the
price at which such number of Preferred Shares or Depositary Shares of such
series or shares of Common Stock may be purchased upon each exercise; (vi) the
date on which the right to exercise such Securities Warrants shall commence
and the Expiration Date; (vii) United States federal income tax consequences;
and (viii) any other terms of such Securities Warrants. Securities Warrants
for the purchase of Preferred Shares, Depositary Shares or Common Stock will
be in registered form only.
Securities Warrant Certificates may be exchanged for new Securities Warrant
Certificates of different denominations, may be presented for registration of
transfer and may be exercised at the corporate trust office of the Securities
Warrant Agent or any other office indicated in the applicable Prospectus
Supplement. Prior to the exercise of any Securities Warrant to purchase Debt
Securities, holders of such Securities Warrants will not have any of the
rights of Holders of the Debt Securities purchasable upon such exercise,
including the right to receive payments of principal of, premium, if any, or
interest, if any, on the Debt Securities purchasable upon such exercise or to
enforce covenants in the Indenture. Prior to the exercise of any Securities
Warrants to purchase Preferred Shares, Depositary Shares or Common Stock,
holders of such Securities Warrants will not have any rights of holders of the
Preferred Shares, Depositary Shares or Common Stock purchasable upon such
exercise, including the right to receive payments of dividends, if any, on the
Preferred Shares, Depositary Shares or Common Stock purchasable upon such
exercise or to exercise any applicable right to vote.
EXERCISE OF SECURITIES WARRANTS
Each Securities Warrant will entitle the holder thereof to purchase such
principal amount of Debt Securities or number of Preferred Shares, Depositary
Shares or shares of Common Stock, as the case may be, at such exercise price
as shall in each case be set forth in, or calculable from, the Prospectus
Supplement relating to the offered Securities Warrants. After the close of
business on the Expiration Date (or such later date to which such Expiration
Date may be extended by the Corporation), unexercised Securities Warrants will
become void.
Securities Warrants may be exercised by delivering to the Securities Warrant
Agent payment as provided in the applicable Prospectus Supplement of the
amount required to purchase the Debt Securities, Preferred Shares, Depositary
Shares or Common Stock, as the case may be, purchasable upon such exercise
together with certain information set forth on the reverse side of the
Securities Warrant Certificate. Securities Warrants will be deemed to have
been exercised upon receipt of payment of the exercise price, subject to the
receipt, within five business days, of the Securities Warrant Certificate
evidencing such Securities Warrants. Upon receipt of such payment and the
Securities Warrant Certificate properly completed and duly executed at the
corporate trust office of the Securities Warrant Agent or any other office
indicated in the applicable Prospectus Supplement, the Corporation will, as
soon as practicable, issue and deliver the Debt Securities, Preferred Shares,
Depositary Shares or Common Stock, as the case may be, purchasable upon such
exercise. If fewer than all of the Securities Warrants represented by such
Securities Warrant Certificate are exercised, a new Securities Warrant
Certificate will be issued for the remaining amount of Securities Warrants.
The holders of Securities Warrants will be required to pay any tax or
governmental charge that may be imposed in connection with any transfer
involved in the issuance of underlying securities issued upon such exercise.
AMENDMENTS AND SUPPLEMENTS TO SECURITIES WARRANT AGREEMENTS
The Securities Warrant Agreements may be amended or supplemented without the
consent of the holders of the Securities Warrants issued thereunder to effect
changes that are not inconsistent with the provisions of the
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Securities Warrants and that do not adversely affect the interests of the
holders of the Securities Warrants. The Corporation and the Securities Warrant
Agent under a Securities Warrant Agreement may also modify or amend a
Securities Warrant Agreement and the terms of the Securities Warrants with the
consent of the holders of not less than a majority in number of the then
outstanding unexercised Securities Warrants affected thereby; provided that no
such modification or amendment that accelerates the expiration date, increases
the exercise price, reduces the majority consent requirement for any such
modification or amendment, or otherwise materially adversely affects the
rights of the holders of the Securities Warrants, may be made without the
consent of each holder affected thereby.
COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable Prospectus Supplement, the
exercise price of, and the number of shares of Common Stock covered by, a
Common Stock Warrant are subject to adjustment in certain events, including
(i) the issuance of capital stock as a dividend or distribution on the Common
Stock; (ii) subdivisions and combinations of the Common Stock; (iii) the
issuance to all holders of Common Stock of certain rights or warrants
entitling them to subscribe for or purchase Common Stock within 45 days after
the date fixed for the determination of the shareholders entitled to receive
such rights or warrants, at less than the current market price (as defined in
the Warrant Agreement for such series of Common Stock Warrants); (iv) the
distribution to all holders of Common Stock of evidences of indebtedness or
assets of the Corporation (excluding certain cash dividends and distributions
described below) or rights or warrants (excluding those referred to above). In
the event that the Corporation shall distribute any rights or warrants to
acquire capital stock pursuant to clause (iii) above (the "Capital Stock
Rights"), pursuant to which separate certificates representing such Capital
Stock Rights will be distributed subsequent to the initial distribution of
such Capital Stock Rights (whether or not such distribution shall have
occurred prior to the date of the issuance of a series of Common Stock
Warrants), such subsequent distribution shall be deemed to be the distribution
of such Capital Stock Rights; provided that the Corporation may, in lieu of
making any adjustment in the exercise price of and the number of shares of
Common Stock covered by a Common Stock Warrant upon a distribution of separate
certificates representing such Capital Stock Rights, make proper provision so
that each holder of such a Common Stock Warrant who exercises such Common
Stock Warrant (or any portion thereof) (a) before the record date for such
distribution of separate certificates shall be entitled to receive upon such
exercise shares of Common Stock issued with Capital Stock Rights and (b) after
such record date and prior to the expiration, redemption or termination of
such Capital Stock Rights shall be entitled to receive upon such exercise, in
addition to the shares of Common Stock issuable upon such exercise, the same
number of such Capital Stock Rights as would a holder of the number of shares
of Common Stock that such Common Stock Warrant so exercised would have
entitled the holder thereof to acquire in accordance with the terms and
provisions applicable to the Capital Stock Rights if such Common Stock Warrant
was exercised immediately prior to the record date for such distribution.
Common Stock owned by or held for the account of the Corporation or any
majority owned subsidiary shall not be deemed outstanding for the purpose of
any adjustment.
No adjustment in the exercise price of and the number of shares of Common
Stock covered by a Common Stock Warrant will be made for regular quarterly or
other periodic or recurring cash dividends or distributions or for cash
dividends or distributions to the extent paid from retained earnings. No
adjustment will be required unless such adjustment would require a change of
at least 1% in the exercise price then in effect; provided that any such
adjustment not so made will be carried forward and taken into account in any
subsequent adjustment; and provided further that any such adjustment not so
made shall be made no later than three years after the occurrence of the event
requiring such adjustment to be made or carried forward. Except as stated
above, the exercise price of and the number of shares of Common Stock covered
by a Common Stock Warrant will not be adjusted for the issuance of Common
Stock or any securities convertible into or exchangeable for Common Stock, or
securities carrying the right to purchase any of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Corporation or (iii) a sale or
conveyance to another corporation of the property and assets of the
Corporation as an entirety or substantially as an entirety, in each case as a
result of which holders of the Corporation's Common Stock shall be entitled to
receive stock, securities, other property or assets (including cash) with
respect to or in exchange for such Common Stock, the holders of the Common
Stock Warrants then outstanding will be
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entitled thereafter to convert such Common Stock Warrants into the kind and
amount of shares of stock and other securities or property which they would
have received upon such reclassification, change, consolidation, merger, sale
or conveyance had such Common Stock Warrants been exercised immediately prior
to such reclassification, change, consolidation, merger, sale or conveyance.
PLAN OF DISTRIBUTION
The Corporation may offer and sell the Offered Securities in any of three
ways: (i) through agents, (ii) through underwriters or dealers, or (iii)
directly to one or more purchasers. The Prospectus Supplement with respect to
any of the Offered Securities will set forth the terms of the offering of such
Offered Securities, including the name or names of any underwriters or agents,
the purchase price of such Offered Securities, the proceeds to the Corporation
from such sale, any underwriting discounts or agency fees and other items
constituting underwriters' or agents' compensation, the initial public
offering price, any discounts or concessions allowed or reallowed or paid to
dealers, and any securities exchanges on which such Offered Securities may be
listed.
The distribution of the Offered Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed,
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
If so indicated in the applicable Prospectus Supplement relating to such
Offered Securities, the Corporation will authorize dealers or other persons
acting as the Corporation's agents to solicit offers by certain institutions
to purchase Offered Securities from the Corporation pursuant to contracts
providing for payment and delivery on a future date. Institutions with which
such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved
by the Corporation. The obligations of any purchaser under any such contract
will not be subject to any conditions except that the purchase of the Offered
Securities shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which such purchaser is subject. The dealers and such
other persons will not have any responsibility in respect of the validity or
performance of such contracts.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Corporation, to indemnification by the Corporation against
certain civil liabilities, including liabilities under the Securities Act, or
to contributions with respect to payments which the underwriters or agents may
be required to make in respect thereof. Underwriters and agents, and
affiliates thereof, may be customers of, engage in transactions with, or
perform services for the Corporation and its affiliates in the ordinary course
of business.
All Offered Securities (except shares of Common Stock) will be new issues of
securities with no established trading market. Any underwriters to whom
Offered Securities are sold by the Corporation for public offering and sale
may make a market in such Offered Securities, but such underwriters will not
be obligated to do so and may discontinue any market making at any time
without notice. No assurance can be given concerning the liquidity of the
trading market for any Offered Securities.
VALIDITY OF SECURITIES
The validity of the Offered Securities will be passed upon for the
Corporation by James T. Hale, General Counsel of the Corporation. Mr. Hale
owns or has the right to acquire a number of shares of Common Stock which
totals less than 1% of the outstanding Common Stock.
EXPERTS
The consolidated financial statements and related schedule of Dayton Hudson
Corporation and subsidiaries included or incorporated by reference in the
Company's Annual Report on Form 10-K for the year ended February 3, 1996 have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included or incorporated therein by reference and incorporated
herein by reference. Such financial statements are, and audited financial
statements to be included in subsequently filed documents will be,
incorporated herein in reliance upon the reports of Ernst & Young LLP
pertaining to such financial statements (to the extent covered by consents
filed with the Securities and Exchange Commission) given upon the authority of
such firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate, subject to future contingencies, of the
expenses to be incurred by the Registrant in connection with the issuance and
distribution of the securities being registered:
<TABLE>
<S> <C>
Registration Fee............................................... $ 78,898
*Legal Fees and Expenses........................................ 60,000
*Trustee Fees and Expenses...................................... 30,000
*Accounting Fees and Expenses................................... 50,000
*Blue Sky and Legal Investment Fees and Expenses................ 20,000
*Printing and Engraving Fees.................................... 80,000
*Rating Agency Fees............................................. 200,000
*Listing Fees................................................... 50,000
*Miscellaneous.................................................. 4,102
--------
Total....................................................... $573,000
========
</TABLE>
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*Estimated pursuant to instruction to Item 511 of Regulation S-K.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is subject to Minnesota Statutes Chapter 302A, the Minnesota
Business Corporation Act (the "Corporation Act"). Section 302A.521 of the
Corporation Act provides in substance that, unless prohibited by its articles
of incorporation or bylaws, a corporation must indemnify an officer or
director who is made or threatened to be made a party to a proceeding by
reason of his official capacity against judgments, penalties, fines,
settlements and reasonable expenses, including attorneys' fees and
disbursements, incurred by such person in connection with the proceeding, if
certain criteria are met. These criteria, all of which must be met by the
person seeking indemnification, are (a) that such person has not been
indemnified by another organization for the same judgments, penalties, fines,
settlements and expenses; (b) that such person must have acted in good faith;
(c) that no improper personal benefit was obtained by such person and such
person satisfied certain statutory conflicts of interest provisions, if
applicable; (d) that in the case of a criminal proceeding, such person had no
reasonable cause to believe that the conduct was unlawful; and (e) that such
person must have acted in a manner he reasonably believed was in the best
interests of the corporation or, in certain limited circumstances, not opposed
to the best interests of the corporation. The determination as to eligibility
for indemnification is made by the members of the corporation's board of
directors or a committee of the board who are at the time not parties to the
proceedings under consideration, by special legal counsel, by the shareholders
who are not parties to the proceedings or by a court.
Pursuant to the terms of forms of underwriting agreements and form of
distribution agreement filed as Exhibits 1(a), 1(b), 1(c) and 1(d) to this
Registration Statement, the directors and officers of the Registrant will be
indemnified against certain civil liabilities that they may incur under the
Securities Act of 1933 in connection with this Registration Statement and the
related Prospectus and applicable Prospectus Supplement.
ITEM 16. EXHIBITS
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<C> <S>
1(a) Form of Underwriting Agreement for Debt Securities.(1)
1(b) Form of Underwriting Agreement for Preferred Shares.(2)
1(c) Form of Underwriting Agreement for Common Stock.(2)
1(d) Form of Distribution Agreement.(3)
</TABLE>
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<TABLE>
<C> <S>
4(a) Restated Articles of Incorporation.(4)
4(b) Certificate of Designation, Preferences and Rights relating to
Registrant's Series A Junior Participating Preferred Stock.(5)
4(c) Certificate of Designation, Preferences and Rights relating to
the Registrant's Series B ESOP Convertible Preferred Stock.(6)
4(d) Bylaws.(7)
4(e) Rights Agreement, dated as of September 11, 1996, between the
Registrant and First Chicago Trust Company of New York.(8)
4(f) Form of Indenture.
4(g) Form of Senior Note.(2)
4(h) Form of Certificate of Designation, Preferences and Rights of
Preferred Shares.(2)
4(i) Form of Preferred Stock Certificate.(2)
4(j) Form of Convertible Preferred Stock Certificate.(2)
4(k) Form of Deposit Agreement, including form of Depositary
Receipt.(2)
4(l) Form of Debt Warrant Agreement, including form of Debt Warrant
Certificate.(2)
4(m) Form of Preferred Shares Warrant Agreement, including form of
Preferred Shares Warrant Certificate.(2)
4(n) Form of Common Stock Warrant Agreement, including form of Common
Stock Warrant Certificate.(2)
4(o) Forms of Registered Medium-Term Notes.(9)
4(p) Form of Common Stock Certificate.
The Registrant and certain of its consolidated subsidiaries have
outstanding certain long-term debt. No individual series of such
debt exceeds 10% of the total assets of Dayton Hudson
Corporation and its consolidated subsidiaries. Copies of
instruments with respect to long-term debt will be furnished to
the Commission upon request.
5 Opinion of General Counsel of the Registrant.
12 Computations of ratios of earnings to fixed charges and ratios
of earnings to fixed charges and preferred stock dividends.(10)
23(a) Consent of General Counsel of the Registrant (included as part
of Exhibit 5).
23(b) Consent of Ernst & Young LLP.
24 Powers of Attorney.
</TABLE>
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(1) Incorporated by reference to the same numbered Exhibit to the Registrant's
Registration Statement on Form S-3, No. 33-42364.
(2) Incorporated by reference to the same numbered Exhibit to the Registrant's
Registration Statement on Form S-3, No. 333-389.
(3) Incorporated by reference to Exhibit 1(a) to Current Report on Form 8-K
dated January 31, 1992 (File No. 1-6049).
(4) Incorporated by reference to Exhibit 3 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended August 3, 1996 (File No. 1-
6049).
(5) Incorporated by reference to Exhibit A to Exhibit 1 to Current Report on
Form 8-K dated September 11, 1996.
(6) Incorporated by reference to Exhibit 3A to the Registrant's Annual Report
on Form 10-K for the year ended January 30, 1993 (File No. 1-6049).
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(7) Incorporated by reference to Exhibit 3(b) to the Registrant's Annual
Report on Form 10-K for the year ended February 3, 1996 (File No. 1-6049).
(8) Incorporated by reference to Exhibit 1 to Current Report on Form 8-K dated
September 11, 1996 (File No. 1-6049).
(9) Incorporated by reference to Exhibits 4(a) and 4(b) to Current Report on
Form 8-K dated January 30, 1992 (File No. 1-6049).
(10) Incorporated by reference to Exhibit 12 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended August 3, 1996 (File No. 1-
6049).
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred
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or paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(d) That, for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(e) That, for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(f) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis and the State of Minnesota, on the 27th
day of September, 1996.
DAYTON HUDSON CORPORATION
/s/ Douglas A. Scovanner
By___________________________________
Douglas A. Scovanner Senior Vice
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on the 27th day of September, 1996 by
the following persons in the capacities indicated:
<TABLE>
<S> <C>
/s/ Bob Ulrich
- -------------------------------------------
Bob Ulrich Chairman of the Board and Chief Executive
Officer (Principal Executive Officer)
/s/ Douglas A. Scovanner
- -------------------------------------------
Douglas A. Scovanner Senior Vice President and Chief Financial
Officer (Principal Financial Officer)
/s/ J. A. Bogdan
- -------------------------------------------
J. A. Bogdan Controller and Chief Accounting Officer
(Principal Accounting Officer)
</TABLE>
Rand V. Araskog
Livio DeSimone
Roger A. Enrico
William W. George A majority of the Board of
Roger L. Hale Directors*
Betty Ruth Hollander
Michele J. Hooper
Mary Patterson McPherson
Solomon D. Trujillo
Robert Ulrich
John R. Walter
*Stephen C. Kowalke, by signing his name hereto on the 27th day of September,
1996, does hereby sign this document on behalf of each of the above named
directors of the registrant pursuant to powers of attorney duly executed by
such persons.
/s/ Stephen C. Kowalke
_____________________________________
Stephen C. Kowalke, Attorney-in-Fact
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION FORM OF FILING
------- -------------------- --------------
<C> <S> <C>
1(a) Form of Underwriting Agreement for Debt
Securities.
1(b) Form of Underwriting Agreement for Preferred
Shares.
1(c) Form of Underwriting Agreement for Common
Stock.
1(d) Form of Distribution Agreement.
4(a) Restated Articles of Incorporation.
4(b) Certificate of Designation, Preferences and
Rights relating to the Registrant's Series A
Junior Participating Preferred Stock.
4(c) Certificate of Designation, Preferences and
Rights relating to the Registrant's Series B
ESOP Convertible Preferred Stock.
4(d) Bylaws.
4(e) Rights Agreement, dated as of September 11,
1996, between the Registrant and First
Chicago Trust Company of New York.
4(f) Form of Indenture........................... Electronic
Transmission
4(g) Form of Senior Note.
4(h) Form of Certificate of Designation,
Preferences and Rights of Preferred Shares.
4(i) Form of Preferred Stock Certificate.
4(j) Form of Convertible Preferred Stock
Certificate.
4(k) Form of Deposit Agreement, including form of
Depositary Receipt.
4(l) Form of Debt Warrant Agreement, including
form of Debt Warrant Certificate.
4(m) Form of Preferred Shares Warrant Agreement,
including form of Preferred Shares Warrant
Certificate.
4(n) Form of Common Stock Warrant Agreement,
including form of Common Stock Warrant
Certificate.
4(o) Forms of Registered Medium-Term Notes.
4(p) Form of Common Stock Certificate............ Electronic Transmission
5 Opinion of General Counsel of the Electronic
Registrant.................................. Transmission
12 Computations of ratios of earnings to fixed
charges and ratios of earnings to fixed
charges and preferred stock dividends.
23(a) Consent of General Counsel of the Registrant
(included as part of Exhibit 5).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT FORM OF
NUMBER DOCUMENT DESCRIPTION FILING
------- -------------------- -------
<C> <S> <C>
23(b) Consent of Ernst & Young LLP............................. Electronic
Transmission
24 Powers of Attorney....................................... Electronic
Transmission
</TABLE>
<PAGE>
Exhibit 4(f)
================================================================================
DAYTON HUDSON CORPORATION
TO
__________________________________,
TRUSTEE
----------------
INDENTURE
DATED AS OF , 1996
________________
----------------
SENIOR DEBT SECURITIES
================================================================================
<PAGE>
DAYTON HUDSON CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF ___________, 1996
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
<S> <C>
(S)310(a)(1).................................................. 609
(a)(2)................................................... 609
(a)(3)................................................... Not Applicable
(a)(4)................................................... Not Applicable
(a)(5)................................................... 609
(b)...................................................... 608, 610
(c)...................................................... Not Applicable
(S)311(a)..................................................... 613
(b)...................................................... 613
(S)312(a)..................................................... 701, 702(a)
(b)...................................................... 702(b)
(c)...................................................... 702(c)
(S)313(a)..................................................... 703(a)
(b)...................................................... 703(a)
(c)...................................................... 703(a)
(d)...................................................... 703(b)
(S)314(a)..................................................... 704, 1011
(b)...................................................... Not Applicable
(c)(1)................................................... 102
(c)(2)................................................... 102
(c)(3)................................................... Not Applicable
(d)...................................................... Not Applicable
(e)...................................................... 102
(S)315(a)..................................................... 601
(b)...................................................... 602
(c)...................................................... 601
(d)...................................................... 601
(e)...................................................... 514
(S)316(a)..................................................... 101
(a)(1)(A)................................................ 104(h), 502, 512
(a)(1)(B)................................................ 104(h), 513
(a)(2)................................................... Not Applicable
(b)...................................................... 508
(c)...................................................... 104(h)
(S)317(a)(1).................................................. 503
(a)(2)................................................... 504
(b)...................................................... 1003
(S)318(a)..................................................... 107
(c)...................................................... 107
</TABLE>
- -----------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Parties.....................................................................1
Recitals....................................................................1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions....................................................1
Act...............................................................2
Affiliate.........................................................2
Attributable Debt.................................................2
Authenticating Agent..............................................2
Authorized Newspaper..............................................2
Bearer Security...................................................3
Board of Directors................................................3
Board Resolution..................................................3
Business Day......................................................3
"CEDEL" or "CEDEL S.A."...........................................3
Commission........................................................3
Company...........................................................3
"Company Request" and "Company Order".............................3
Consolidated Net Tangible Assets..................................4
Corporate Trust Office............................................4
corporation.......................................................4
coupon............................................................4
Debt Securities...................................................4
Defaulted Interest................................................4
Depositary........................................................4
Designated Currency...............................................4
"Dollar" or "$"...................................................5
ECU...............................................................5
Euroclear.........................................................5
European Communities..............................................5
Event of Default..................................................5
Exchange Rate.....................................................5
Exchange Rate Agent...............................................5
Exchange Rate Officer's Certificate...............................5
Foreign Currency..................................................5
Funded Debt.......................................................5
GAAP..............................................................6
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Global Exchange Agent...................................... 6
Global Exchange Date....................................... 6
Global Security............................................ 6
Government Obligations..................................... 6
Holder..................................................... 6
Indebtedness............................................... 6
Indenture.................................................. 6
Interest................................................... 7
Interest Payment Date...................................... 7
Investments................................................ 7
Maturity................................................... 7
Mortgage................................................... 7
Officers' Certificate...................................... 7
Operating Property......................................... 7
Opinion of Counsel......................................... 8
Original Issue Discount Security........................... 8
Outstanding................................................ 8
Paying Agent............................................... 8
Person..................................................... 9
Place of Payment........................................... 9
Predecessor Security....................................... 9
Preferred Stock............................................ 9
Redemption Date............................................ 9
Redemption Price........................................... 9
Registered Security........................................ 9
Regular Record Date........................................ 9
Remarketing Entity......................................... 9
Repayment Date............................................. 9
Repayment Price............................................ 9
Responsible Officer........................................10
Restricted Subsidiary......................................10
Secured Funded Debt........................................10
Security Register..........................................10
Special Record Date........................................10
Stated Maturity............................................10
Subsidiary.................................................10
Trust Indenture Act........................................10
Trustee....................................................10
United States..............................................10
United States Alien........................................10
Unrestricted Subsidiary....................................11
Voting Stock...............................................11
Wholly-owned Restricted Subsidiary.........................11
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Section 102. Compliance Certificates and Opinions......................... 11
Section 103. Form of Documents Delivered to Trustee....................... 12
Section 104. Acts of Holders.............................................. 12
Section 105. Notices, etc., to Trustee and Company........................ 15
Section 106. Notice to Holders; Waiver.................................... 16
Section 107. Conflict with Trust Indenture Act............................ 17
Section 108. Effect of Headings and Table of Contents..................... 17
Section 109. Successors and Assigns....................................... 17
Section 110. Separability Clause.......................................... 17
Section 111. Benefits of Indenture........................................ 17
Section 112. Governing Law................................................ 17
Section 113. Legal Holidays............................................... 18
Section 114. Exemption from Individual Liability.......................... 18
Section 115. Counterparts................................................. 18
ARTICLE TWO
Debt Security Forms
Section 201. Forms Generally.............................................. 19
Section 202. Form of Trustee's Certificate of Authentication.............. 20
Section 203. Debt Securities in Global Form............................... 20
ARTICLE THREE
The Debt Securities
Section 301. Amount Unlimited; Issuance in Series......................... 21
Section 302. Denominations................................................ 24
Section 303. Execution, Authentication, Delivery and Dating............... 24
Section 304. Temporary Debt Securities.................................... 27
Section 305. Registration; Registration of Transfer and Exchange.......... 30
Section 306. Mutilated, Destroyed, Lost and Stolen Debt Securities........ 34
Section 307. Payment of Interest; Interest Rights Preserved............... 35
Section 308. Persons Deemed Owners........................................ 37
Section 309. Cancellation................................................. 37
Section 310. Computation of Interest...................................... 38
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Section 311. Certification by a Person Entitled to Delivery of a Bearer Security..........38
Section 312. Judgments....................................................................38
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture......................................39
Section 402. Application of Trust Money and Government Obligations........................40
Section 403. Satisfaction, Discharge and Defeasance of Debt Securities of any Series......41
ARTICLE FIVE
Remedies
Section 501. Events of Default............................................................43
Section 502. Acceleration of Maturity; Rescission and Annulment...........................45
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee..............46
Section 504. Trustee May File Proofs of Claim.............................................47
Section 505. Trustee May Enforce Claims without Possession of Debt Securities or Coupons..48
Section 506. Application of Money Collected...............................................48
Section 507. Limitation on Suits..........................................................49
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest....49
Section 509. Restoration of Rights and Remedies...........................................50
Section 510. Rights and Remedies Cumulative...............................................50
Section 511. Delay or Omission Not Waiver.................................................50
Section 512. Control by Holders of Debt Securities........................................50
Section 513. Waiver of Past Defaults......................................................51
Section 514. Undertaking for Costs........................................................51
Section 515. Waiver of Stay or Extension Laws.............................................52
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities..........................................52
Section 602. Notice of Default............................................................52
Section 603. Certain Rights of Trustee....................................................53
Section 604. Not Responsible for Recitals or Issuance of Debt Securities..................54
Section 605. May Hold Debt Securities or Coupons..........................................54
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 606. Money Held in Trust.......................................... 54
Section 607. Compensation and Reimbursement............................... 54
Section 608. Disqualification; Conflicting Interests...................... 55
Section 609. Corporate Trustee Required; Eligibility...................... 56
Section 610. Resignation and Removal; Appointment of Successor............ 56
Section 611. Acceptance of Appointment by Successor....................... 58
Section 612. Merger, Conversion, Consolidation or Succession to Business.. 59
Section 613. Preferential Collection of Claims Against Company............ 60
Section 614. Authenticating Agent......................................... 60
ARTICLE SEVEN
Holders' Lists and Reports By Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.... 61
Section 702. Preservation of Information; Communications to Holders....... 62
Section 703. Reports by Trustee........................................... 62
Section 704. Reports by Company........................................... 62
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, etc. Only on Certain Terms.......... 63
Section 802. Successor Corporation Substituted............................ 64
Section 803. Conveyance or Transfer to a Wholly-owned Restricted
Subsidiary................................................... 64
Section 804. Limitation on Lease of Properties as Entirety................ 64
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures without Consent of Holders........... 65
Section 902. Supplemental Indentures with Consent of Holders.............. 66
Section 903. Execution of Supplemental Indentures......................... 67
Section 904. Effect of Supplemental Indentures............................ 68
Section 905. Conformity with Trust Indenture Act.......................... 68
Section 906. Reference in Debt Securities to Supplemental Indentures...... 68
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.................. 68
</TABLE>
v
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Section 1002. Maintenance of Office or Agency............................. 69
Section 1003. Money for Debt Securities Payments to Be Held in Trust...... 70
Section 1004. Corporate Existence......................................... 71
Section 1005. Maintenance of Properties................................... 72
Section 1006. Payment of Additional Amounts............................... 72
Section 1007. Payment of Taxes and Other Claims........................... 73
Section 1008. Restriction on the Creation of Secured Funded Debt.......... 73
Section 1009. Restriction on Sale and Lease-Back Transactions............. 74
Section 1010. Restriction on Permitting Unrestricted Subsidiaries to
become Restricted Subsidiaries.............................. 75
Section 1011. Officer's Certificate as to Default......................... 75
Section 1012. Waiver of Certain Covenants................................. 76
ARTICLE ELEVEN
Redemption of Debt Securities
Section 1101. Applicability of Article.................................... 76
Section 1102. Election to Redeem; Notice to Trustee....................... 76
Section 1103. Selection by Trustee of Debt Securities to be Redeemed...... 76
Section 1104. Notice of Redemption........................................ 77
Section 1105. Deposit of Redemption Price................................. 78
Section 1106. Debt Securities Payable on Redemption Date.................. 78
Section 1107. Debt Securities Redeemed in Part............................ 79
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.................................... 79
Section 1202. Satisfaction of Sinking Fund Payments with Debt Securities.. 80
Section 1203. Redemption of Debt Securities for Sinking Fund.............. 80
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301. Applicability of Article.................................... 81
Section 1302. Repayment of Debt Securities................................ 81
Section 1303. Exercise of Option; Notice.................................. 81
Section 1304. Election of Repayment by Remarketing Entities............... 82
</TABLE>
vi
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Section 1305. Securities Payable on the Repayment Date.................... 83
ARTICLE FOURTEEN
Meetings of Holders of Debt Securities
Section 1401. Purposes for Which Meetings May Be Called................... 83
Section 1402. Call, Notice and Place of Meetings.......................... 83
Section 1403. Persons Entitled to Vote at Meetings........................ 84
Section 1404. Quorum; Action.............................................. 84
Section 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings................................... 85
Section 1406. Counting Votes and Recording Action of Meetings............. 86
ARTICLE FIFTEEN
Defeasance
Section 1501. Termination of Company's Obligations........................ 86
Section 1502. Repayment to Company........................................ 88
Section 1503. Indemnity for Government Obligations........................ 88
Testimonium............................................................... 88
Signature and Seals....................................................... 88
Acknowledgements.......................................................... 89
Exhibit A-1............................................................... A-1
Exhibit A-2............................................................... A-2
Exhibit B................................................................. B-1
</TABLE>
vii
<PAGE>
INDENTURE (the "Indenture") dated as of ___________, 1996, between
DAYTON HUDSON CORPORATION, a Minnesota corporation (hereinafter called the
"Company"), having its principal place of business at 777 Nicollet Mall,
Minneapolis, Minnesota 55402 and __________________________________ (hereinafter
called the "Trustee"), having its Corporate Trust Office at
________________________________________________________.
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 debentures,
notes, bonds and other evidences of indebtedness (herein called the "Debt
Securities").
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities of any series created and issued on or after the date hereof by the
Holders thereof, it is mutually covenanted and agreed, for the benefit of all
Holders of such Debt Securities or of any such series, 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 or by Commission rule or regulation under the Trust Indenture
Act, either directly or by reference therein, as in force at the date as of
which this instrument was executed, except as provided in Section 905, have
the meanings assigned to them therein;
<PAGE>
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"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.
"Attributable Debt" means, at any date as of which the amount thereof
is to be determined, the sum of attributable debt relating to capital leases and
operating leases under which any Person is liable. The amount of attributable
debt relating to capital leases is the balance sheet liability amount (capital
lease obligations and current portion thereof) in respect of such capital leases
as determined under GAAP. The amount of attributable debt relating to operating
leases is the amount of future minimum lease payments under such operating
leases required to be disclosed by GAAP, less any executory costs, discounted
using the methodology used to calculate the present value of operating lease
payments in the Company's most recent Annual Report to Shareholders that
reflects such a calculation. "Executory costs" mean amounts required to be paid
on account of maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges. In the case of any operating lease which is
terminable by the lessee upon the payment of a penalty, such net amount shall
include the lesser of (a) the rental payments to be paid under such lease until
the first date (after the date of such determination) upon which it may be so
terminated plus the then applicable penalty upon such termination, or (b) the
rental payments required to be paid during the remaining term of such lease
(assuming such termination provision is not exercised).
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Debt Securities.
"Authorized Newspaper" means a newspaper in an official language of
the country of publication or in the English language customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where
2
<PAGE>
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
"Bearer Security" means any Debt Security established pursuant to
Section 201 which is payable to bearer including, without limitation, unless the
context otherwise indicates, a Debt Security in global bearer form.
"Board of Directors" means either the board of directors of the
Company, or the executive or any other committee of that board duly authorized
to act in respect hereof.
"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. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Debt Securities and the forms and terms
thereof), such action may be taken by any committee of the Board or the Company
or any officer or employee of the Company authorized to take such action by a
Board Resolution.
"Business Day", when used with respect to any Place of Payment, means
any day which is not a Saturday or Sunday and which is not a legal holiday or a
day on which banking institutions or trust companies in that Place of Payment
are authorized or obligated by law or executive order to close.
"CEDEL" or "CEDEL S.A." means Cedel Bank S.A.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor 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, except as
otherwise provided in this Indenture, a written request or order signed in the
name of the Company by the Chairman of the Board, a Vice Chairman of the Board,
the President or a Vice President (any references to a Vice President of the
Company herein shall be deemed to include any Vice President of the Company
whether or not designated by a number or word or words added before or after the
title "Vice President"), the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, the Secretary or an Assistant Secretary of the Company
or by another officer of the Company duly authorized to sign by a Board
Resolution, and delivered to the Trustee.
3
<PAGE>
"Consolidated Net Tangible Assets" means (a) the total amount of
assets (less applicable reserves and other properly deductible items) which
under GAAP would be included on a consolidated balance sheet of the Company and
its Restricted Subsidiaries after deducting therefrom (i) all liabilities and
liability items, including amounts in respect of obligations or guarantees of
obligations under leases, which under GAAP would be included on such balance
sheet, except Funded Debt, capital stock and surplus, surplus reserves and
provisions for deferred income taxes, and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, which in each case under GAAP would be included on such
consolidated balance sheet, less (b) the amount which would be so included on
such consolidated balance sheet for Investments (less applicable reserves) (i)
made in Unrestricted Subsidiaries, or (ii) made in corporations while they were
Unrestricted Subsidiaries but which at the time of computation are not
Subsidiaries of the Company.
"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 original execution of this Indenture is located at
___________________ _______________________________________, Attention:
________________________, except that, with respect to presentation of the Debt
Securities for payment or registration of transfers or exchanges and the
location of the Security Registrar, such term means the office or agency of the
Trustee at which at any particular time its corporate agency business shall be
conducted, which at the date of original execution of this Indenture is located
at _____________ ______________________________________.
The term "corporation" includes corporations, associations, companies
and business trusts.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities authenticated and
delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Debt Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a 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 Debt Securities of any such series
shall mean the Depositary with respect to the Debt Securities of that series.
"Designated Currency" has the meaning specified in Section 312.
4
<PAGE>
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Euroclear" means Morgan Guarantee Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Agent" shall have the meaning specified as contemplated
in Section 301.
"Exchange Rate Officer's Certificate", with respect to any date for
the payment of principal of (and premium, if any) and interest on any series of
Debt Securities, means a certificate setting forth the applicable Exchange Rate
and the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Debt Securities denominated
in ECU, any other composite currency or Foreign Currency, and signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, a Vice
President, the Treasurer, an Assistant Treasurer or the Controller of the
Company or the Exchange Rate Agent appointed pursuant to Section 301, and
delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"Funded Debt" means (i) all Indebtedness which by its terms matures
more than 12 months after the time of the computation of the amount thereof or
which is extendible or renewable at the option of the obligor on such
Indebtedness to a time more than 12 months after the time of the computation of
the amount thereof, (ii) all guarantees, direct or indirect, of any such
Indebtedness or of dividends, other than any guarantee in connection with the
sale or discount by the Company or any Restricted Subsidiary of accounts
receivable, trade acceptances and other paper arising in the ordinary course of
business, and (iii) in the case of any Subsidiary, all Preferred Stock of such
Subsidiary, taken at the greater of its voluntary or involuntary liquidation
price at the time of any calculation hereunder, but exclusive of accrued
dividends, if any; provided, however, that in determining the amount of Funded
Debt of the Company or any Subsidiary there shall not be included any amount in
respect of obligations under leases, or guarantees of obligations under
5
<PAGE>
leases, whether or not such obligations or guarantees are shown on a balance
sheet as liability items. The Company or any Restricted Subsidiary shall be
deemed to have assumed Funded Debt secured by any Mortgage upon any of its
property or assets whether or not it has actually done so.
"GAAP" means, as of the date of any determination with respect
thereto, generally accepted accounting principles as used by the Financial
Accounting Standards Board and/or the American Institute of Certified Public
Accountants, consistently applied and maintained throughout the periods
indicated.
"Global Exchange Agent" has the meaning specified in Section 304.
"Global Exchange Date" has the meaning specified in Section 304.
"Global Security" means a Debt Security issued to evidence all or
part of a series of Debt Securities in accordance with Section 303.
"Government Obligations" means, in respect of any series of Debt
Securities, securities of (i) the government which issued the currency in which
Debt Securities of such series are denominated and/or in which interest is
payable on the Debt Securities of such series or (ii) government agencies backed
by the full faith and credit of such government.
"Holder", with respect to a Registered Security, means a Person in
whose name such Registered Security is registered in the Security Register and,
with respect to a Bearer Security or a coupon, means the bearer thereof.
"Indebtedness" means (i) all items of indebtedness or liability
(except capital and surplus) which in accordance with GAAP would be included in
determining total liabilities as shown on the liability side of a balance sheet
as at the date as of which indebtedness is to be determined, (ii) indebtedness
secured by any Mortgage existing on property owned subject to such Mortgage,
whether or not the indebtedness secured thereby shall have been assumed, and
(iii) guarantees, endorsements (other than for purposes of collection) and other
contingent obligations in respect of, or to purchase or otherwise acquire,
indebtedness of others, unless the amount thereof is included in indebtedness
under the preceding clause (i) or (ii); provided, however, that any obligations
or guarantees of obligations in respect of lease rentals, whether or not such
obligations or guarantees of obligations would be included as liabilities on a
consolidated balance sheet of the Company and its Restricted Subsidiaries, shall
not be included in Indebtedness.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented, amended or restated by or pursuant to one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series of Debt Securities established as contemplated by
Section 301.
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"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", with respect to any Debt Security, means the
Stated Maturity of an installment of interest on such Debt Security.
"Investments" mean and include all investments, whether by acquisition
of stock or Indebtedness, or by loan, advance, transfer of property, capital
contribution or otherwise, made by the Company or by any Restricted Subsidiary,
and shall include all guarantees, direct or indirect, by the Company or any
Restricted Subsidiary of any Indebtedness of an Unrestricted Subsidiary which by
its term matures 12 months or less from the time of computation of the amount
thereof to the extent not included as a liability or liability item on the
consolidated balance sheet of the Company and its Restricted Subsidiaries, but
shall not include accounts receivable of the Company or of any Restricted
Subsidiary arising from the sale of merchandise in the ordinary course of
business.
"Maturity", when used with respect to any Debt Security, means the
date on which the principal of such Debt Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
"Mortgage" means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Operating Property" means any retail store, distribution center or
other property related to the general retail business of the Company or any
Subsidiary, parking facilities, and any equipment located at or comprising a
part of any such property, which has a net book value on the date as of which
the determination is being made in excess of .35% of Consolidated Net Tangible
Assets and which has been owned and operated by the Company or any Subsidiary
for more than 90 days; provided, however, that any such property or equipment
(not theretofore owned by the Company or a Subsidiary) owned and operated by a
corporation which becomes a Subsidiary after the execution and delivery of this
Indenture as originally executed shall not constitute Operating Property unless
owned and operated by such corporation for more than 90 days after it becomes a
Subsidiary.
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"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of or
counsel for the Company, or who may be other counsel acceptable to the Trustee,
which is delivered to the Trustee.
"Original Issue Discount Security" means any Debt Security which
provides 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 Debt Securities means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Debt Securities or portions thereof for whose payment or
redemption money or Government Obligations 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 Debt
Securities and any coupons appertaining thereto; provided, however, that if
such Debt 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) Debt Securities in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered, or which have been paid,
pursuant to this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debt Securities
owned by the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of 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 such request, demand, authorization,
direction, notice, consent or waiver, only Debt Securities which the Trustee
knows to be so owned shall be so disregarded. Debt 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 Debt Securities and that the pledgee is not the Company or
any other obligor upon the Debt Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
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"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Debt Securities of
any series means any place where the principal of (and premium, if any) and
interest on the Debt Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 306 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Preferred Stock", as applied to the capital stock of any corporation,
means stock of any class or classes (however designated) which is preferred as
to the payment of dividends, or as to the distribution of assets on any
voluntary or involuntary liquidation or dissolution of such corporation, over
shares of stock of any other class of such corporation.
"Redemption Date", when used with respect to any Debt Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Debt Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Debt Security in the form of
Registered Securities established pursuant to Section 201 which is registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Remarketing Entity", when used with respect to Debt Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any person designated by the Company to purchase any such
Debt Securities.
"Repayment Date", when used with respect to any Debt Security to be
repaid upon exercise of an option for repayment by the Holder, means the date
fixed for such repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Debt Security to be
repaid upon exercise of an option for repayment by the Holder, means the price
at which it is to be repaid pursuant to this Indenture.
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"Responsible Officer" when used with respect to the Trustee, means any
officer of the Trustee assigned by it to administer its corporate trust matters.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"Secured Funded Debt" means any Funded Debt which is secured by a
Mortgage upon any assets of the Company or a Restricted Subsidiary, including in
such assets, without limitation, shares of stock or Indebtedness of any
Subsidiary owned by the Company or a Restricted Subsidiary.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Debt Security or any
installment of interest thereon, means the date specified in such Debt Security
or a coupon representing such installment of interest as the fixed date on which
the principal of such Debt Security or such installment is due and payable.
"Subsidiary" means any corporation more than 50% of the outstanding
shares of Voting Stock, except for directors' qualifying shares, of which shall
at the time be owned, directly or indirectly, by the Company or by one or more
of the Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
"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 or include 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 Debt Securities of any series shall mean the Trustee with respect
to Debt Securities of that series.
"United States" means the United States of America (including the
District of Columbia) and its possessions.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of
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a foreign estate or trust, or a foreign partnership one or more of the members
of which is, for United States Federal income tax purposes, a foreign
corporation, a non-resident alien individual or a non-resident alien fiduciary
of a foreign estate or trust.
"Unrestricted Subsidiary" means (a) (i) Eighth Street Development
Company, Dayton Hudson Capital Corporation and Dayton Hudson Receivables
Corporation, (ii) any Subsidiary created or acquired after the date hereof the
primary business of which consists of financing operations in connection with
leasing and conditional sales transactions on behalf of the Company and its
Subsidiaries, and/or purchasing accounts receivable, and/or making loans secured
by accounts receivable or inventory, or which is otherwise primarily engaged in
the business of a finance company, and (iii) any other Subsidiary which, in
accordance with the provisions of this Indenture, has been designated by Board
Resolution as an Unrestricted Subsidiary, in each case unless and until any of
the Subsidiaries referred to in the foregoing clauses (i), (ii) and (iii) shall,
in accordance with the provisions of this Indenture, be designated by Board
Resolution as a Restricted Subsidiary; and (b) any Subsidiary a majority of the
Voting Stock of which shall at the time be owned directly or indirectly by one
or more Unrestricted Subsidiaries.
"Voting Stock", as applied to the stock (or the equivalent thereof) of
any corporation, means stock (or the equivalent thereof) of any class or
classes, however designated, entitled in the ordinary course to vote in an
election of directors of such corporation, other than stock (or such equivalent)
having such power only by reason of the happening of a contingency.
"Wholly-owned Restricted Subsidiary" means any Restricted Subsidiary
all the outstanding capital stock of which, other than directors' qualifying
shares, is owned by the Company and its other Wholly-owned Restricted
Subsidiaries.
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, if so requested by 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 shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
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(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 or
she has made such examination or investigation as is necessary to enable
him or her 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 or her certificate or opinion is
based is 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 opinions or representations with respect to such
matters is 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 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 an agent duly
appointed in writing. If Debt Securities of a series are issuable in whole or
in part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may,
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alternatively, be embodied in and evidenced by the record of Holders of Debt
Securities voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Debt Securities duly called
and held in accordance with the provisions of Article Fourteen, or a combination
of such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or the holding by any
Person of a Debt Security, 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. The record of any meeting of
Holders of Debt Securities shall be proved in the manner provided in Section
1406.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities in the amount and with the serial numbers
therein described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding.
(e) The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Debt Security shall bind every future
holder of the same Debt
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Security and the Holder of every Debt Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, suffered or omitted by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Debt Security.
(g) For purposes of determining the principal amount of Outstanding
Debt Securities of any series the Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under this Indenture, (i) each Original
Issue Discount Security shall be deemed to have the principal amount determined
by the Trustee that could be declared to be due and payable pursuant to the
terms of such Original Issue Discount Security as of the date there is delivered
to the Trustee and, where it is hereby expressly required, to the Company, such
Act by Holders of the required aggregate principal amount of the Outstanding
Debt Securities of such series and (ii) each Debt Security denominated in a
Foreign Currency or composite currency shall be deemed to have the principal
amount determined by the Exchange Rate Agent by converting the principal amount
of such Debt Security in the currency in which such Debt Security is denominated
into Dollars at the Exchange Rate as of the date such Act is delivered to the
Trustee and, where it is hereby expressly required, to the Company, by Holders
of the required aggregate principal amount of the Outstanding Debt Securities of
such series.
(h) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Debt Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Debt Securities of such series, provided that
the Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding Debt
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
(as defined below) by Holders of the requisite principal amount of Outstanding
Debt Securities of such series on such record date. Nothing in this paragraph
shall be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Debt Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of Debt
Securities of the relevant series in the manner set forth in Section 106.
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The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Debt Securities of any series entitled to
join in the giving or making of (i) any notice of an Event of Default, (ii) any
declaration of acceleration referred to in Section 502, (iii) any request to
institute proceedings referred to in Section 507(2), or (iv) any direction
referred to in Section 512, in each case with respect to Debt Securities of such
series. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Debt Securities of such series on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Debt Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding Debt
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Company's expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Company in
writing and to each Holder of Debt Securities of the relevant series in the
manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Debt Securities of the relevant series in the
manner set forth in Section 106, on or prior to the existing Expiration Date.
If an Expiration Date is not designated with respect to any record date set
pursuant to this Section, the party hereto which set such record date shall be
deemed to have initially designated the 180th day after such record date as the
Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other 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 (unless otherwise herein expressly provided),
if in writing and sent by certified mail or by courier to the Trustee at
its Corporate Trust Office, or
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(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and sent by certified mail or by courier to the Company
addressed to the attention of its Secretary at the address of its principal
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, (1) such notice shall be
sufficiently given to Holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each Holder of a Registered Security affected by
such event, at such Holder's address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice; and (2) such notice shall be sufficiently given
to Holders of Bearer Securities by publication thereof in an Authorized
Newspaper in The City of New York and, if the Debt Securities of such series are
then listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland and such stock exchange shall so require, in London, and, if
the Debt Securities of such series are then listed on the Luxembourg Stock
Exchange and such stock exchange shall so require, in Luxembourg and, if the
Debt Securities of such series are then listed on any other stock exchange
outside the United States and such stock exchange shall so require, in any other
required city outside the United States or, if not practicable, in Europe on a
Business Day at least twice, the first such publication to be not later than the
latest date and not earlier than the earliest date prescribed for the giving of
such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or for any other reason, it shall be impossible or impracticable to
mail notice of any event to Holders of Registered Securities when said notice is
required to be given pursuant to any provision of this Indenture or of the Debt
Securities, then any manner of giving such notice as shall be satisfactory to
the Trustee shall be deemed to be a sufficient giving of such notice. In any
case where notice to Holders of Registered Securities is to be given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder of a Registered Security shall affect the sufficiency
of such notice with respect to other Holders of Registered Securities or the
sufficiency of any notice by publication to Holders of Bearer Securities given
as provided above.
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
as provided above, then such method of publication or notification as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice. Neither failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
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Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act required or permitted under this Indenture shall
be in the English language, except that any published notice may be in an
official language of the country of publication.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision 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 Debt Securities or
any coupons 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 Debt Securities or any coupons,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, any Paying Agent and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Debt Securities and any coupons shall be
governed by and construed in accordance with the laws of the State of Minnesota.
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SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repayment Date or Stated Maturity of any Debt Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Debt Securities or any coupons) payment of interest or
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date or at the Stated Maturity, and no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date, Repayment Date or Stated Maturity, as the case
may be.
SECTION 114. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Debt Security or any coupon, or for any claim based
thereon or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any successor
corporation, or any of them, 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 Debt Securities or any coupon 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 or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Debt Securities or any coupon 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 issue of
such Debt Securities.
SECTION 115. Counterparts.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
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ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, and the Bearer Securities and
related coupons, if any, of each series shall be in substantially the form
(including temporary or permanent global form) as shall be established in or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and 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 Debt Securities or coupons, as evidenced by their
signatures on the Debt Securities or coupons. If the form of Debt Securities of
any series or coupons (including any such Global Security) is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Debt Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Debt
Securities in bearer form other than Debt Securities in temporary or permanent
global form shall have coupons attached.
The definitive Debt Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by the execution of such Debt Securities and coupons.
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SECTION 202. Form of Trustee's Certificate of Authentication.
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
-----------------------------------,
as Trustee
By---------------------------------------
Authorized Officer
SECTION 203. Debt Securities in Global Form.
If Debt Securities of a series are issuable in whole or in part in
global form, as specified as contemplated by Section 301, then, notwithstanding
clause (10) of Section 301 and the provisions of Section 302, such Global
Security shall represent such of the outstanding Debt Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Debt Securities from time to time endorsed
thereon and that the aggregate amount of Outstanding Debt Securities represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a Global Security to reflect the amount, or any increase or decrease in the
amount, of Outstanding Debt Securities represented thereby shall be made in such
manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304.
The provisions of the last sentence of Section 303(g) shall apply to
any Debt Securities represented by a Debt Security in global form if such Debt
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Debt Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with respect to the reduction in the principal amount of
Debt Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303(g).
Global Securities may be issued in either registered or bearer form
and in permanent form or, in the case of Bearer Securities, either temporary or
permanent form.
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ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuance in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
(2) the limit, if any, upon the aggregate principal amount of the
Debt Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Debt Securities of the series pursuant to Section 304, 305, 306,
906, 1107 or 1303 and except for any Debt Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal and premium, if any, of
the Debt Securities of the series are payable;
(4) the rate or rates, if any, at which the Debt Securities of the
series shall bear interest, or the method or methods by which such rate or
rates may be determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable,
the Regular Record Date for the interest payable on any Registered Security
on any Interest Payment Date and the circumstances, if any, in which the
Company may defer interest payments;
(5) the place or places where, subject to the provisions of Section
1002, the principal of (and premium, if any) and interest on Debt
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Debt Securities of
the series may be surrendered for exchange and notices and demands to or
upon the Company in respect of the Debt Securities of the series and this
Indenture may be served and where notices to Holders pursuant to Section
106 will be published;
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(6) if applicable, the period or periods within which or the date or
dates on which, the price or prices at which and the terms and conditions
upon which Debt Securities of the series may be redeemed, in whole or in
part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(8) whether Debt Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Debt Securities
of the series are to be issuable with or without coupons or both and, in
the case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first
Debt Security of such series of like tenor and term to be issued;
(9) whether the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities and, in
such case, the Depositary and Global Exchange Agent for such Global
Security or Securities, whether such global form shall be permanent or
temporary and, if applicable, the Global Exchange Date;
(10) if Debt Securities of the series are to be issuable initially in
the form of a temporary Global Security, the circumstances under which the
temporary Global Security can be exchanged for definitive Debt Securities
and whether the definitive Debt Securities will be Registered and/or Bearer
Securities and will be in global form and whether interest in respect of
any portion of such Global Security payable in respect of an Interest
Payment Date prior to the Global Exchange Date shall be paid to any
clearing organization with respect to a portion of such Global Security
held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date if other than as
provided in this Article Three;
(11) whether, and under what conditions, additional amounts will be
payable to Holders of Debt Securities of the series pursuant to Section
1006;
(12) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which any Bearer
Securities of such series shall be issuable, if other than the denomination
of $5,000;
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(13) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) the currency or currencies of denomination of the Debt Securities
of any series, which may be in Dollars, any Foreign Currency or any
composite currency, including but not limited to the ECU, and, if any such
currency of denomination is a composite currency other than the ECU, the
agency or organization, if any, responsible for overseeing such composite
currency;
(15) the currency or currencies in which payment of the principal of
(and premium, if any) and interest on the Debt Securities will be made, any
other currency or currencies in which payment of the principal of (and
premium, if any) or the interest on Registered Securities, at the election
of each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made,
and the Exchange Rate and Exchange Rate Agent;
(16) if the amount of payments of principal of (and premium, if any)
or interest on the Debt Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(17) if payments of principal of (and premium, if any) or interest on
the Debt Securities of the series are to be made in a Foreign Currency
other than the currency in which such Debt Securities are denominated, the
manner in which the Exchange Rate with respect to such payments shall be
determined;
(18) any Events of Default with respect to Debt Securities of such
series, if not set forth herein;
(19) any other covenant or warranty included for the benefit of the
Debt Securities of the series in addition to (and not inconsistent with)
those set forth herein for the benefit of Debt Securities of all series, or
any other covenant or warranty included for the benefit of Debt Securities
of the series in lieu of any covenant or warranty set forth herein for the
benefit of Debt Securities of all series, or any provision that any
covenant or warranty set forth herein for the benefit of Debt Securities of
all series shall not be for the benefit of Debt Securities of such series,
or any combination of such covenants, warranties or provisions and the
applicability, if any, of the provisions of Section 1012 to such covenants
and warranties;
(20) the terms and conditions, if any, pursuant to which the Company's
obligations under this Indenture may be terminated through the deposit of
money or Government Obligations as provided in Articles Four and Fifteen;
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(21) the Person or Persons who shall be Security Registrar for the
Debt Securities of such series if other than the Trustee, and the place or
places where the Security Register for such series shall be maintained and
the Person or Persons who will be the initial Paying Agent or Agents, if
other than the Trustee; and
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers' Certificate or in any such indenture supplemental hereto.
Debt Securities of any particular series may be issued at various
times, with different dates on which the principal or any installment of
principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on
which such interest may be payable and with different Redemption or Repayment
Dates and may be denominated in different currencies or payable in different
currencies.
If any of the terms of a series of Debt Securities are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
Debt Securities of each series shall be issuable in such form and
denominations as shall be specified in the form of Debt Security for such series
approved or established pursuant to Section 201 or in the Officers' Certificate
delivered pursuant to Section 301. In the absence of any specification with
respect to the Debt Securities of any series, the Registered Securities of such
series, if any, shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series, if any, shall be
issuable in the denominations of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
(a) The Debt Securities shall be executed on behalf of the Company by
its Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by its Treasurer or one of its Assistant Treasurers or its
Secretary or one of its Assistant Secretaries under its corporate seal
reproduced thereon. The signature of any of these officers on the Debt
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of an authorized officer of the Company.
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Debt Securities and coupons 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
Debt Securities or coupons of any series or did not hold such offices at the
date of such Debt Securities or coupons.
(b) At any time and from time to time after the execution and delivery
of this Indenture, Debt Securities of any series may be executed by the Company
and delivered to the Trustee for authentication, and, except as otherwise
provided in this Article Three, shall thereupon be authenticated and delivered
by the Trustee upon Company Order, without any further action by the Company;
provided, however, that, in connection with its original issuance, a Bearer
Security may be delivered only outside the United States and, except in the case
of a temporary Global Security, only if the Company or its agent shall have
received the certification required pursuant to Sections 304(b)(iii) and (iv),
unless such certification shall have been provided earlier pursuant to section
304(b)(v) hereof, and only if the Company has no reason to know that such
certification is false.
To the extent authorized in or pursuant to a Board Resolution and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, such written Company Order may be given by any one officer
or employee of the Company, may be electronically transmitted, and may provide
instructions as to registration of holders, principal amounts, rates of
interest, maturity dates and other matters contemplated by such Board Resolution
and Officers' Certificate or supplemental indenture to be so instructed in
respect thereof. Before authorizing and delivering the first Debt Securities of
any series (and upon request of the Trustee thereafter), the Company shall
deliver to the Trustee (i) the certificates called for under Sections 201 and
301 hereof and (ii) an Opinion of Counsel described in the next sentence.
In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to any such Debt Securities,
the Trustee shall be entitled to receive, prior to the initial authentication of
such Debt Securities, and (subject to Section 601) shall be fully protected in
relying upon:
(i) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution
certified by the Secretary or an Assistant Secretary of the Company;
(ii) an executed supplemental indenture, if any, relating thereto;
(iii) an Officers' Certificate setting forth the form and terms
of the Debt Securities of such series and coupons, if any, pursuant to
Sections 201 and 301 and stating that all conditions precedent provided for
in this Indenture relating to the issuance of such Debt Securities have
been complied with; and
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(iv) an Opinion of Counsel stating
(A) that the form of such Debt Securities and coupons, if any,
has been established in or pursuant to a Board Resolution or by a
supplemental indenture as permitted by Section 201 in conformity with
the provisions of this Indenture;
(B) that the terms of such Debt Securities and coupons, if
any, have been established in or pursuant to a Board Resolution or by
a supplemental indenture as permitted by Section 301 in conformity
with the provisions of this Indenture; and
(C) that such Debt Securities and coupons, if any, when
authenticated and delivered by the Trustee and issued by the Company
in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally and the application of general principles of equity and
except further as enforcement thereof may be limited by (i)
requirements that a claim with respect to any Debt Securities
denominated other than in Dollars (or a Foreign Currency or currency
unit judgment in respect of such claim) be converted into Dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (ii) governmental authority to limit, delay or
prohibit the making of payments in Foreign Currencies or currency
units or payments outside the United States.
(c) If the Company shall establish pursuant to Section 301 that the
Debt 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 permanent
or temporary form that (i) shall represent and shall be denominated in an
aggregate amount equal to the aggregate principal amount of the Outstanding Debt
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
or Securities or the nominee of such Depositary and (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instructions.
(d) The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section 303 if the issuance of such Debt
Securities will adversely affect the Trustee's own rights, duties or immunities
under the Debt Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
(e) If all the Debt Securities of any series are not to be issued
at one time, it shall not be necessary to deliver an Opinion of Counsel at the
time of issuance of each Debt
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Security, but such Opinion of Counsel, with appropriate modifications, may
instead be delivered at or prior to the time of the first issuance of Debt
Securities of such series.
(f) Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
(g) No Debt Security or coupon attached thereto shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Debt Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee, and such
certificate upon any Debt Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. Notwithstanding the
foregoing, if any Debt Security or portion thereof shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 309 together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Debt Security or portion thereof has never been issued and
sold by the Company, for all purposes of this Indenture such Debt Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
(h) Each Depositary designated pursuant to Section 301 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation.
SECTION 304. Temporary Debt Securities.
(a) Pending the preparation of definitive Debt Securities of any
series, the Company may execute, and upon receipt of documents required by
Sections 301 and 303, together with a Company Order, the Trustee shall
authenticate and deliver, temporary Debt Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor and terms of the definitive Debt
Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Debt Securities may determine, as evidenced by their
signatures on such Debt Securities. In the case of Debt Securities of any series
issuable as Bearer Securities, such temporary Debt Securities may be in global
form, representing all or any part of the Outstanding Debt Securities of such
series.
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(b) Unless otherwise provided pursuant to Section 301:
(i) Except in the case of temporary Debt Securities in global form,
if temporary Debt Securities of any series are issued, the Company will
cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of
such series, the related temporary Debt Securities shall be exchangeable
for such definitive Debt Securities upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company in the
Place of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Debt Securities of
any series (accompanied, if applicable, by all unmatured coupons and all
matured coupons in default appertaining thereto), the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Debt Securities of the same series of like
tenor and terms and of authorized denominations; provided, however, that no
Bearer Security shall be delivered in exchange for a Registered Security;
and provided, further, that a Bearer Security shall be delivered in
exchange for a Bearer Security only in compliance with the conditions set
forth in Section 305.
(ii) If Debt Securities of any series are issued in temporary global
form, any such temporary Global Security shall, unless otherwise provided
pursuant to Section 301, be delivered to the Depositary for the benefit of
Euroclear and CEDEL S.A., for credit to the respective accounts of the
beneficial owners of such Debt Securities (or to such other accounts as
they may direct).
(iii) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary Global Security (the "Global Exchange Date"), the Company shall
deliver definitive Debt Securities to the Trustee or the agent appointed by
the Company pursuant to Section 301 to effect the exchange of the temporary
Global Security for definitive Debt Securities (the "Global Exchange
Agent"), in an aggregate principal amount equal to the principal amount of
such temporary Global Security, executed by the Company. On or after the
Global Exchange Date, such temporary Global Security shall be surrendered
by the Depositary to the Global Exchange Agent, to be exchanged, in whole
or from time to time in part, for definitive Debt Securities without charge
and the Trustee or the Global Exchange Agent, if authorized by the Trustee
pursuant to Section 614, shall authenticate and deliver, in exchange for
each portion of such temporary Global Security, an equal aggregate
principal amount of definitive Debt Securities of the same series of
authorized denominations and of like tenor and terms as the portion of such
temporary Global Security to be exchanged. Upon any exchange of a part of
such temporary Global Security for definitive Debt Securities, the portion
of the principal amount and any interest thereon so exchanged shall be
endorsed by the Global Exchange Agent on a schedule to such temporary
Global Security, whereupon the principal amount and interest payable with
respect to such temporary Global Security shall be reduced for all purposes
by the amount so exchanged and endorsed. The definitive
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Debt Securities to be delivered in exchange for any such temporary Global
Security shall be in bearer form, registered form, global registered form
or global bearer form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so
specified, as requested by the beneficial owner thereof; provided, however,
that, in the case of the exchange of the temporary Global Security for
definitive Bearer Securities (including a definitive Global Bearer
Security), upon such presentation by the Depositary, such temporary Global
Security shall be accompanied by a certificate signed by Euroclear as to
the portion of such temporary Global Security held for its account then to
be exchanged and a certificate signed by CEDEL S.A. as to the portion of
such temporary Global Security held for its account then to be exchanged,
each in the form set forth in Exhibit B to this Indenture; and provided,
further, that definitive Bearer Securities (including a definitive Global
Bearer Security) shall be delivered in exchange for a portion of a
temporary Global Security only in compliance with the requirements of
Section 303.
(iv) The interest of a beneficial owner of Debt Securities of a series
in a temporary Global Security shall be exchanged for definitive Debt
Securities of the same series and of like tenor and terms following the
Global Exchange Date when the account holder instructs Euroclear or CEDEL
S.A., as the case may be, to request such exchange on such account holder's
behalf and, in the case of the exchange of the temporary Global Security
for definitive Bearer Securities (including a definitive Global Bearer
Security), the account holder delivers to Euroclear or CEDEL S.A., as the
case may be, a certificate in the form set forth in Exhibit A-1 and, if
applicable, A-2 to this Indenture, dated no earlier than 15 days prior to
the Global Exchange Date, copies of which certificate shall be available
from the offices of Euroclear and CEDEL S.A., the Global Exchange Agent,
any authenticating agent appointed for such series of Debt Securities and
each Paying Agent. Unless otherwise specified in such temporary Global
Security, any such exchange shall be made free of charge to the beneficial
owners of such temporary Global Security, except that a Person receiving
definitive Debt Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take
delivery of such definitive Debt Securities in person at the offices of
Euroclear and CEDEL S.A. Definitive Debt Securities in bearer form to be
delivered in exchange for any portion of a temporary Global Security shall
be delivered only outside the United States.
(v) Until exchanged in full as hereinabove provided, the temporary
Debt Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same
series and of like tenor and terms authenticated and delivered hereunder,
except that interest payable on a temporary Global Security on an Interest
Payment Date shall be payable to Euroclear and CEDEL S.A. on such Interest
Payment Date only if there has been delivered by Euroclear and CEDEL S.A.
to the Global Exchange Agent a certificate or certificates in the form set
forth in Exhibit B to this Indenture dated no earlier than the first
Interest Payment Date, for credit without further interest on or after such
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary Global Security on such Interest
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Payment Date and who have each delivered to Euroclear or CEDEL S.A., as the
case may be, a certificate in the form set forth in Exhibit A-1 and, if
applicable, A-2 to this Indenture dated no earlier than the first Interest
Payment Date. Any interest so received by Euroclear and CEDEL S.A. and not
paid as herein provided prior to the Global Exchange Date shall be returned
to the Global Exchange Agent which, upon expiration of two years after such
Interest Payment Date, shall repay such interest to the Company in
accordance with Section 1003.
SECTION 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at one of the offices or agencies
to be maintained by the Company in accordance with the provisions of this
Section 305 and Section 1002, with respect to the Debt Securities of each series
which are Registered Securities, a register (herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. Pursuant to Section 301,
the Company shall appoint, with respect to Debt Securities of each series which
are Registered Securities, a "Security Registrar" for the purpose of registering
such Debt Securities and transfers and exchanges of such Debt Securities as
herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series of any authorized denomination or
denominations, of like tenor and terms and aggregate principal amount.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series of any
authorized form and denomination, of like tenor and terms and aggregate
principal amount, upon surrender of the Registered Securities to be exchanged at
such office or agency. Bearer Securities may not be delivered in exchange for
Registered Securities.
At the option of the Holder, Registered Securities or Bearer
Securities of any series may be issued in exchange for Bearer Securities (except
as otherwise specified as contemplated by Section 301 with respect to a Bearer
Security in global form) of the same series, of any authorized denominations and
of like tenor and terms and aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company and the Trustee in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may
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require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor and terms after the close of business at such office or agency on (i)
any Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related date
for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be.
Whenever any Debt Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Debt Securities of such series or if at any time the Depositary for the
Debt Securities of such series shall no longer be eligible under Section 303(h),
the Company shall appoint a successor Depositary with respect to the Debt
Securities of such series. If a successor Depositary for the Debt Securities of
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 301(9) shall no longer be effective with respect to
the Debt Securities of such series and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and deliver, Debt
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 Debt 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 will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt 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 Debt Securities, the Depositary for such series of Debt Securities may
surrender a Global Security for such series of Debt Securities in exchange in
whole or in part for Debt Securities of such series
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of like tenor and terms and in definitive form on such terms as are acceptable
to the Company and such Depositary. Thereupon, the Company shall execute, and
the Trustee shall authenticate and deliver, without charge to any Holder,
(a) to each Person specified by such Depositary a new Debt Security or
Securities of the same series, of like tenor and terms and of any
authorized denominations 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
(b) to such Depositary a new Global Security of like tenor and terms
and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Debt Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver Debt
Securities (a) in definitive registered form in authorized denominations, if the
Debt Securities of such series are issuable as Registered Securities, (b) in
definitive bearer form in authorized denominations, with coupons attached, if
the Debt Securities of such series are issuable as Bearer Securities or (c) as
either Registered or Bearer Securities, as shall be specified by the beneficial
owner thereof, if the Debt Securities of such series are issuable in either
form; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Global Security unless the Company or its agent
shall have received from the person entitled to receive the definitive Bearer
Security a certificate substantially in the form set forth in Exhibit A-1 and,
if applicable, A-2 hereto; and provided further that delivery of a Bearer
Security shall occur only outside the United States; and provided further that
no definitive Bearer Security will be issued if the Company has reason to know
that any such certificate is false.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Registered Securities to the persons in whose names
such Debt Securities are so registered. The Trustee shall deliver Bearer
Securities issued in exchange for a Global Security pursuant to this Section to
the persons, and in such authorized denominations, as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the
person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and provided further that delivery of a Bearer Security shall occur only
outside the United States; and provided further that no definitive Bearer
Security will be issued if the Company has reason to know that any such
certificate is false.
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All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or such Holder's
attorney duly authorized in writing.
No charge to any Holder shall be made for any registration of transfer
or exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer, registration of transfer or exchange of Debt
Securities, other than exchanges expressly provided in this Indenture to be made
at the Company's own expense or without expense or without charge to the
Holders.
The Company shall not be required (i) to issue, register the transfer
of or exchange Debt Securities of any particular series to be redeemed for a
period of fifteen days preceding the first publication of the relevant notice of
redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption of Debt Securities
of such series selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (ii) to register the transfer
of or exchange any Registered Security so selected for redemption in whole or in
part, except the unredeemed portion of such Registered Security being redeemed
in part, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security of
like tenor and terms of that series, provided that such Registered Security
shall be simultaneously surrendered for redemption.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities into Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange; neither the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the United
States Federal income tax laws and regulations then in effect and the Company
has delivered to the Trustee a Company Order directing the Trustee not to make
such exchanges thereafter unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company
Orders to the Security Registrar.
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SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security or a Bearer Security with a
mutilated coupon appertaining to it is surrendered to a Paying Agent outside the
United States designated by the Company, or, in the case of any Registered
Security, to the Trustee, or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security or
coupon, and 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 and the Trustee that such Debt Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute and
upon its written request the Trustee shall authenticate and deliver, in exchange
for any such mutilated Debt Security or Bearer Security with a mutilated coupon
appertaining to it or to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen) or in lieu of any
such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor
and terms and principal amount, bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Debt Security or to the Debt Security to which
such destroyed, lost or stolen coupon appertains; provided, however, that any
such new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 305.
In case any such mutilated, destroyed, lost or stolen Debt Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay such Debt Security
or coupon; provided, however, that payment of principal of (and premium, if any)
and any interest on Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an office or agency located outside the United
States; and provided, further, that, with respect to any such coupons, interest
represented thereby (but not any additional amounts payable as provided in
Section 1006), shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Debt Security or coupons 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 and printing
expenses) connected therewith.
Every new Debt Security of any series, with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen Debt
Security, or in exchange for a Bearer Security to which a destroyed, lost or
stolen coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security and its coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and any such new Debt Security and
coupons, if any, shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Debt Securities of that series and
their coupons, if any, duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture. At the option of the Company, payment of interest on any Registered
Security may be made by check in the currency designated for such payment
pursuant to the terms of such Registered Security mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
by wire transfer to an account in such currency designated by such Person in
writing not later than ten days prior to the date of such payment.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by virtue
of his having been such Holder, 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 Registered Securities of such series (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 Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money and/or Government Obligations the payments of
principal and interest on which when due (and without reinvestment) will
provide money in such amounts as will (together with any money irrevocably
deposited in trust with the Trustee, without investment) be equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money and/or Government
Obligations when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
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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. Unless the Trustee is acting as the Security Registrar,
promptly after such Special Record Date, the Company shall furnish the
Trustee with a list, or shall make arrangements satisfactory to the Trustee
with respect thereto, of the names and addresses of, and principal amounts
of Registered Securities of such series held by, the Holders appearing on
the Security Register at the close of business on such Special Record Date.
In the name and at the expense of the Company, the Trustee 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 Registered Securities of such series 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
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or
agency on any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will not
be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Registered Securities 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 manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
Subject to the limitations set forth in Section 1002, the Holder of
any coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon
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upon presentation and surrender of such coupon on or after the Interest Payment
Date of such coupon at an office or agency maintained for such purpose pursuant
to Section 1002.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or of the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 307)
interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered 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.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon 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.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 309. Cancellation.
Unless otherwise provided with respect to a series of Debt Securities,
all Debt Securities and coupons surrendered for payment, redemption, repayment,
transfer, exchange or credit against any sinking fund payment pursuant to this
Indenture shall, if surrendered to the Company or any agent of the Company, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Debt Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Debt Securities so delivered shall be
promptly cancelled by the Trustee. No Debt Securities shall be authenticated in
lieu of or in exchange for any Debt Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled Debt
Securities and coupons 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 the cancelled Debt Securities or coupons be returned
to it.
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SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Certification by a Person Entitled to Delivery of a
Bearer Security.
Whenever any provision of this Indenture or a Debt Security
contemplates that certification be given by a Person entitled to delivery of a
Bearer Security, such certification shall be provided substantially in the form
of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall
be approved by the Company and consented to by the Trustee, whose consent shall
not unreasonably be withheld.
SECTION 312. Judgments.
The Company agrees that, to the fullest extent possible under
applicable law and except as may otherwise be specified as contemplated in
Section 301, (a) the obligation, if any, of the Company to pay the principal of
(and premium, if any) and interest on the Debt Securities of any series and any
appurtenant coupons in a Foreign Currency, composite currency or Dollars (the
"Designated Currency") as may be specified pursuant to Section 301 is of the
essence, and judgments in respect of such Debt Securities shall be given in the
Designated Currency; (b) the obligation of the Company to make payments in the
Designated Currency of the principal of (and premium, if any) and interest on
such Debt Securities and any appurtenant coupons shall, notwithstanding any
payment in any other currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in the Designated Currency that the
Holder receiving such payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other currency (after any premium and cost of
exchange) in the country of issue of the Designated Currency in the case of
Foreign Currency or Dollars or in the international banking community in the
case of a composite currency on the Business Day immediately following the day
on which such Holder receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
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ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Debt Securities herein expressly provided for and rights to receive
payments of principal and interest thereon and any right to receive additional
amounts, as provided in Section 1006) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when
(1) either
(A) all Debt Securities theretofore authenticated and delivered
and all coupons appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered in exchange for
Registered Securities and maturing after such exchange, surrender of
which is not required or has been waived as provided in Section 305,
(ii) Debt Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
306, (iii) coupons appertaining to Bearer Securities called for
redemption or surrendered for repayment and maturing after the
relevant Redemption Date or Repayment Date, as appropriate, surrender
of which has been waived as provided in Section 1106 or 1303 and (iv)
Debt Securities and coupons for whose payment money and/or Government
Obligations have 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 cancelled or for cancellation; or
(B) all such Debt Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
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and the Company, in the case of (B)(i), (B)(ii) or (B)(iii)
above, has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose money and/or
Government Obligations the payments of principal and interest on
which when due (and without reinvestment) will provide money in
such amounts as will (together with any money irrevocably
deposited in trust with the Trustee, without investment) be
sufficient to pay and discharge the entire indebtedness on such
Debt Securities and coupons of such series for principal (and
premium, if any) and interest, and any mandatory sinking fund,
repayment or analogous payments thereon, on the scheduled due
dates therefor to the date of such deposit (in the case of Debt
Securities and coupons which have become due and payable) or to
the Stated Maturity or Redemption Date, if any, and all Repayment
Dates (in the case of Debt Securities repayable at the option of
the Holders thereof); provided, however, that in the event a
petition for relief under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law is
filed with respect to the Company within 91 days after the
deposit, the obligations of the Company under the Indenture with
respect to the Debt Securities of such series shall not be deemed
terminated or discharged, and in such event the Trustee shall be
required to return the deposited money and Government Obligations
then held by the Trustee to the Company;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) 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 and, if money or
Government Obligations shall have been deposited with the Trustee pursuant to
Subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money and Government Obligations.
(a) Subject to the provisions of the last paragraph of Section 1003,
all money and Government Obligations deposited with the Trustee pursuant to
Section 401, 403 or 1501 shall be held in trust and such money and the principal
and interest received on such Government Obligations shall be applied by it, in
accordance with the provisions of the Debt Securities, any coupons 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 whose payment such money or Government Obligations have
been deposited with the Trustee.
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(b) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any Government Obligations or money held by it as provided
in Section 403 or 1501 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for which such
Government Obligations or money were deposited or received.
(c) The Trustee shall deliver to the Company from time to time upon
Company Request any Government Obligations held by it as provided in Section 403
or 1501, provided that the Company in substitution therefor simultaneously
delivers to the Trustee, money or other Government Obligations which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, would
then be sufficient to satisfy the Company's payment obligations in respect of
the Debt Securities in the manner contemplated by Section 403 or 1501.
SECTION 403. Satisfaction, Discharge and Defeasance of Debt
Securities of any Series.
If this Section 403 is specified, as contemplated by Section 301, to
be applicable to Debt Securities of any series, then, notwithstanding Section
401, (i) the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Debt Securities of any such series and
related coupons; (ii) the provisions of this Indenture as it relates to such
Outstanding Debt Securities and related coupons shall no longer be in effect
(except as to (A) the rights of Holders of Debt Securities to receive, from the
trust fund described in subparagraph (1) below, payment of (x) the principal of
(and premium, if any) and any installment of principal of (and premium, if any)
or interest on such Debt Securities and related coupons on the Stated Maturity
of such principal (and premium, if any) or installment of principal (and
premium, if any) or interest or (y) any mandatory sinking fund, repayment or
analogous payments applicable to the Debt Securities of that series on that day
on which such payments are due and payable in accordance with the terms of this
Indenture and of such Debt Securities, (B) the Company's obligations with
respect to such Debt Securities under Sections 304, 305, 306, 1002, 1003 and
1006, and (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, including those under Section 607 hereof); and (iii) the Trustee, at
the expense of the Company, shall, upon Company Order, execute proper
instruments acknowledging satisfaction and discharge of such indebtedness, when
(1) either
(A) with respect to all Outstanding Debt Securities of such
series and related coupons, with reference to this Section 403, the
Company has deposited or caused to be deposited with the Trustee
irrevocably, as trust funds in trust, money and/or Government
Obligations the payments of principal and interest on which when due
(and without reinvestment) will provide money in such amounts as will
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(together with any money irrevocably deposited in trust with the
Trustee, without investment) be sufficient to pay and discharge (i)
the principal of (and premium, if any) and interest on the Outstanding
Debt Securities of that series on the Stated Maturity of such
principal or interest or, if such series may be redeemed by the
Company prior to the Stated Maturity thereof and the Company shall
have given irrevocable instructions to the Trustee to effect such
redemption, at the date fixed for such redemption pursuant to Article
Eleven, and (ii) any mandatory sinking fund payments or analogous
payments applicable to Debt Securities of such series on the date on
which such payments are due and payable in accordance with the terms
of this Indenture and of such Debt Securities; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
301, to be applicable to the Debt Securities of such series;
(2) the Company has paid or caused to be paid all sums payable with
respect to the Outstanding Debt Securities of such series and related
coupons;
(3) such deposit will not result in a breach of, or constitute a
default under, this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound;
(4) no Event of Default or event which, with the giving of notice or
lapse of time, or both, would become an Event of Default pursuant to
Section 501(1), (2), (3), (6) or (7) with respect to the Debt Securities of
such series shall have occurred and be continuing on the date of such
deposit and no Event of Default under Section 501(6) or Section 501(7) or
event which, with the giving of notice or lapse of time, or both, would
become an Event of Default under Section 501(6) or Section 501(7) shall
have occurred and be continuing on the 91st day after such date; provided,
however, that should that condition fail to be satisfied on or before such
91st day, the Trustee shall promptly, upon satisfactory receipt of evidence
of such failure, return such deposit to the Company;
(5) if the Debt Securities of that series are then listed on any
domestic or foreign securities exchange, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that such deposit,
defeasance and discharge will not cause such Debt Securities to be
delisted; and
(6) 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 the
entire indebtedness of all Outstanding Debt Securities and related coupons
have been complied with.
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Any deposits with the Trustee referred to in Section 403(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow or trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Debt Securities of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow or
trust agreement shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 403
with respect to all the Outstanding Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that the Company shall not be discharged
from any payment obligations in respect of Debt Securities of such series which
are deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
403) of the Company under this Indenture with respect to any series of Debt
Securities, the obligations of the Company to the Trustee under Section 607, and
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003, shall survive with respect to such series of Debt Securities.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Debt
Securities of any series, means 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, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Debt Security of
such series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Debt Security of such series at its Maturity; or
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(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Debt Security of such series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of Debt Securities of a series other than
such series), 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 Outstanding Debt Securities of such
series, 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) a default under any Indebtedness for money borrowed by the Company
or any Subsidiary (including a default with respect to Debt Securities of
any series other than that series) or under any Mortgage, indenture or
instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company or any
Subsidiary (including this Indenture), whether such Indebtedness now exists
or shall hereafter be created, which default shall have resulted in such
Indebtedness in an outstanding principal amount in excess of $20 million
becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable, without such acceleration
having been rescinded or annulled, or such Indebtedness having been
discharged, within a period of 10 days after there shall have 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 Outstanding Securities of that series a written notice specifying
such default and requiring the Company to cause such acceleration to be
rescinded or annulled or cause such Indebtedness to be discharged and
stating that such notice is a "Notice of Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order 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 any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
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 for relief or any
such other decree or order unstayed and in effect for a period of 90
consecutive days; or
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(7) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
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 the taking of corporate action by the Company in
furtherance of any such action; or
(8) any other Event of Default provided with respect to Debt
Securities of such series specified as contemplated by Section 301.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debt Securities of any series
at the time Outstanding occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of
Outstanding Debt Securities of such series may declare the principal amount (or,
if the Debt Securities of such series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) of and all accrued but unpaid interest on all the Debt Securities of
such series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by such Holders), and upon any such
declaration such principal amount (or specified amount) shall become immediately
due and payable. Upon payment of such amount, all obligations of the Company in
respect of the payment of principal of the Debt Securities of such series shall
terminate.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made 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 the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all Debt Securities
of such series,
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(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
prescribed therefor in such Debt Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expense, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Debt Securities of such
series, other than the non-payment of the principal of Debt Securities of
such series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest on
any Debt Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Debt Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities and any related coupons, the amount then due and
payable on such Debt Securities and coupons for principal (and premium, if any)
and interest and, to the extent that payment of such interest shall be legally
enforceable, interest upon the overdue principal (and premium, if any) and, upon
overdue installments of interest, at the rate or rates prescribed therefor in
such Debt Securities, 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.
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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 Debt Securities and coupons
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 Debt
Securities and coupons, wherever situated.
If an Event of Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities of such
series and any related coupons 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 proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities of a particular series or any related
coupons or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
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 proceedings or otherwise,
(1) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Debt
Securities of such series and any appurtenant coupons 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
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such 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 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.
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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 Debt
Securities or any coupons 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 Debt
Securities or Coupons.
All rights of action and claims under this Indenture or the Debt
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Debt Securities or coupons 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 Debt
Securities and coupons 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 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 (and premium,
if any) or interest, upon presentation of the Debt Securities or any coupons, or
both, as the case may be, 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 the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities and
any coupons, in respect of which or for the benefit of which such money has
been collected ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debt Securities and any
coupons for principal (and premium, if any) and interest, respectively.
The Holders of each series of Debt Securities denominated in ECU, any other
composite currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount
determined by the Exchange Rate Agent by converting the principal amount
Outstanding of such series of Debt Securities and matured but unpaid
interest on such series of Debt Securities in the currency in which such
series of Debt Securities is denominated into Dollars at the Exchange Rate
as of the date of declaration of acceleration of the Maturity of the Debt
Securities; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
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SECTION 507. Limitation on Suits.
No Holder of any Debt Securities of any series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Debt Securities of such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written request
to the Trustee 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 Debt Securities of such series;
it being understood and intended that no one or more of such Holders 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 such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security or coupon shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on such Debt Security or payment of such
coupon on the respective Stated Maturity or Maturities expressed in such Debt
Security or coupon (or, in the case of redemption or repayment, on the
Redemption Date or the Repayment Date, as the case may be) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
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SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceedings 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.
Except as otherwise provided in Section 306, 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 Debt
Security or coupon 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 of Debt Securities.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series 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 with respect to the Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the
Trustee, determine that the proceedings so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining in
any such direction; and
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(3) 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 Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, 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 Debt Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt
Security or coupon 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, suffered 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 a 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
Company or the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 25% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest on any Debt Security or the payment of any coupons on or after
the respective Stated Maturity or Maturities expressed in such Debt Security or
coupon (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date, as the case may be).
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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 whenever 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 benefits 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.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
Except during the continuance of an Event of Default, the Trustee's
duties and responsibilities under this Indenture shall be governed by the Trust
Indenture Act. In case an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture, and
shall 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.
Notwithstanding the foregoing, 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. 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 Default.
If a default occurs hereunder with respect to Debt Securities of
any series the Trustee shall transmit by mail to all Holders of Debt Securities
of such series notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 501(4) with respect to Debt Securities of such
series no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Debt Securities of such series.
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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 signature, resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon 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 shall 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 of Debt Securities of such series or any related coupons
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,
note, coupon, other evidence of indebtedness 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, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney,
other than any such books or records containing information as to the affairs of
the customers of the Company or any of its subsidiaries; provided that the
Trustee may examine such books and records relating to customers to the extent
that such books and records contain information as to any payments made to such
customers in their capacity as Holders of Debt Securities; provided, further,
that the Trustee shall treat all information regarding the Company which it
receives pursuant to this Indenture and its duties hereunder as confidential and
shall not disclose such information unless necessary in order to fulfill its
duties under this Indenture or the Trust Indenture Act; and
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(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; no Exchange Rate Agent, Global Exchange Agent, Depositary or Paying
Agent shall be deemed an agent of the Trustee and the Trustee shall not be
responsible for any act or omission by any of them.
SECTION 604. Not Responsible for Recitals or Issuance of Debt
Securities.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, and in any coupons, and the
information in any registration statement, including all attachments thereto,
except information provided by the Trustee therein, 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 Debt Securities of any series or any
coupons. The Trustee shall not be accountable for the use or application by the
Company of any Debt Securities or the proceeds thereof. The Trustee shall not
be responsible for and makes no representations as to the Company's ability or
authority to issue Bearer Securities or the lawfulness thereof.
SECTION 605. May Hold Debt Securities or Coupons.
The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Debt Securities and coupons, and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need
not be segregated from other funds except to the extent required by law.
Neither the Trustee nor any Paying Agent shall be under any 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 shall have from time to
time been separately agreed to by the Company and the Trustee in writing
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
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(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 or performance of its duties hereunder, including the
reasonable 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.
The Trustee shall promptly notify the Company of any claim for which
it may seek indemnification pursuant to the provisions of this Indenture. The
Company shall be entitled to participate in, and to the extent that it shall
wish, to assume the defense of such claim, with counsel satisfactory to the
Trustee (and the Trustee shall cooperate in the defense thereof), and after
notice from the Company to the Trustee of the Company's election so to assume
the defense thereof, the Company shall not be liable to the Trustee under this
Indenture for any legal or other expenses subsequently incurred by the Trustee
in connection with the defense thereof other than reasonable costs of
investigation. The Company shall not be obligated under any settlement
agreement relating to any claim under this Indenture to which it has not agreed
in writing.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a claim prior to the Debt Securities
and any coupons upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (and premium,
if any) or interest on particular Debt Securities or any coupons.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest with respect to Debt Securities of any series by virtue of being a
trustee under (a) this Indenture with respect to any particular series of Debt
Securities or (b) ____________ ___________________________.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation that is eligible pursuant to the Trust Indenture Act to act as such
and organized and doing business under the laws of the United States, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$5,000,000, and subject to supervision or examination by Federal or State
authority; provided, however, that if Section 310(a) of the Trust Indenture Act
or the rules and regulations of the Commission under the Trust Indenture Act at
any time permit a corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section 609 shall be automatically amended to permit a
corporation organized and doing business under the laws of any such other
jurisdiction to serve as Trustee hereunder. 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. 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 Debt
Securities of one or more 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 Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Debt Securities of such series, delivered to the Trustee and
to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 with respect to
the Debt Securities of any series after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Debt Security
of such series for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 609 with
respect to any series of Debt Securities and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Debt Securities or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in respect of the
Trustee in an involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State bankruptcy,
insolvency or similar law; or a decree or order by a court having
jurisdiction in the premises shall have been entered for the appointment of
a receiver, custodian, liquidator, assignee, trustee, sequestrator or other
similar official of the Trustee or of its property or affairs, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator or other similar official of
the Trustee or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate action in
furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series at any time or (ii) subject to Section 514,
any Holder who has been a bona fide Holder of a Debt Security of any series 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 for
the Debt Securities of such series and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Debt Securities, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Debt
Securities or one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Debt
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Debt Securities of one or more or
all of such series and that at any time there shall be only one Trustee with
respect to the Debt 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 Debt Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt 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
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee
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with respect to the Debt 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 Debt Security of such
series for at least six months may, subject to Section 514, 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 Debt Securities
of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Debt
Securities of such series are issuable as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of Payment
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Debt Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In the case of the appointment hereunder of a successor Trustee
with respect to the Debt 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 Debt 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 Debt 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 Debt 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 Debt
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
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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 Debt Securities of that or those series to which the appointment of such
successor Trustee relates; but, on the 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 Debt Securities of that or those series to which the
appointment of such successor Trustee relates.
(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, with the written approval of the Company, be the
successor of the Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the executing or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Debt Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion, consolidation or
sale to such authenticating Trustee may adopt such authentication and deliver
the Debt Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Debt Securities. In case any Debt
Securities shall not have been authenticated by such predecessor Trustee, any
such successor Trustee may authenticate and deliver such Debt Securities, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee. If the Trustee's successor by merger, conversion, consolidation or
sale shall not have received the written approval of the Company, such successor
shall resign within 20 days after the merger, conversion, consolidation or sale
and such vacancy in the office of the Trustee shall be filled in the manner
specified in Section 610.
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SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or shall become a creditor, directly
or indirectly, secured or unsecured, of the Company (or any other obligor upon
the Debt Securities), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding collection of claims against the Company (or any
such other obligor).
SECTION 614. Authenticating Agent.
The Trustee may upon Company request appoint one or more
Authenticating Agents (including, without limitation, the Company or any
Affiliate thereof) with respect to one or more series of Debt Securities which
shall be authorized on behalf of the Trustee in authenticating Debt Securities
of such series in connection with the issue, delivery, registration of transfer,
exchange, partial redemption or repayment of such Debt Securities. Wherever
reference is made in this Indenture to the authentication of Debt Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent must be
acceptable to the Company and, in the case of Registered Securities, must be a
corporation organized and doing business under the laws of the United States or
of any State or the District of Columbia, having a combined capital surplus of
at least $1,000,000, authorized under such laws to do a trust business and
subject to supervision or examination by Federal or State authorities, and in
the case of Bearer Securities and an authenticating agent who is not organized
and doing business under the laws of the United States or of any State thereof
or the District of Columbia, is subject to supervision or examination by the
appropriate foreign authorities.
Any corporation succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
An authenticating agent may at any time resign with respect to one or
more series of Debt Securities by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of
any authenticating agent with respect to one or more series of Debt Securities
by giving written notice of termination to such authenticating agent and to the
Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time an authenticating agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor authenticating agent. Any successor authenticating agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent herein. No successor authenticating
agent shall be appointed unless eligible under the provisions of this Section.
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The Trustee agrees to pay to each authenticating agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payment, subject to the
provisions of Section 607.
The provisions of Sections 104, 111, 306, 309, 603, 604 and 605 shall
be applicable to any authenticating agent.
Pursuant to each appointment made under this Section, the Debt
Securities of each series covered by such appointment may have endorsed thereon,
in lieu of the Trustee's certificate of authentication, an alternate certificate
of authentication in substantially the following form:
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
----------------------------------
By
------------------------------------------
As Authenticating Agent for the Trustee
By
------------------------------------------
Authorized Officer
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 with
respect to Debt Securities of each series for which it acts as Trustee:
(1) semi-annually, not later than May 15 and November 15 in each year,
a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Registered Securities as of the preceding
May 1 or November 1, as the case may be, and
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(2) 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 if and so long as the Trustee shall be the Security
Registrar, no such list need 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 Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Paying Agent or 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. The Trustee shall preserve
for at least two years the names and addresses of Holders of Bearer Securities
filed with the Trustee by such Holders.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Debt Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Debt Securities or coupons, 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 any disclosure of
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first
May 15 after the first issuance of Debt Securities pursuant to this Indenture
and at any other time required by the Trust Indenture Act, the Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture and such other matters as may be required pursuant to the Trust
Indenture Act in the manner required by the Trust Indenture Act.
(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 any Debt
Securities of such series are listed, with the Commission and also with the
Company. The Company will notify the Trustee when any series of Debt Securities
are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders such information, documents and other reports, and such
summaries thereof, as may be
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required pursuant to the Trust Indenture Act at the time and in the manner
pursuant to such Act; provided that such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 shall be filed with the Trustee within 15
days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc. Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company, or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America, any
political subdivision thereof or any State thereof 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 (including all
additional amounts, if any, payable pursuant to Section 1006) on all the
Debt 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;
(3) except in the case of a consolidation or merger of a Restricted
Subsidiary with or into the Company, (a) the Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of each
series, by Act of the Holders delivered to the Company and the Trustee,
shall have consented thereto, or (b)(i) immediately after giving effect to
such transaction, the corporation formed by or resulting or surviving
therefrom or which shall have received such conveyance or transfer of
properties and assets shall be permitted to become liable for an increased
amount of Secured Funded Debt under the provisions of paragraph (a) of
Section 1008, and (ii) prior to such consolidation, merger, conveyance or
transfer there shall have been filed with the Trustee an Officers'
Certificate
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stating that immediately after such consolidation, merger, conveyance or
transfer such corporation may take the action referred to in the foregoing
clause (i); and
(4) 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 met.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation with or merger into any other corporation, 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
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the
Company herein, and thereafter, except in the case of a lease, the Company
(which term for this purpose shall mean 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 presented in this Article) shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and any coupons.
SECTION 803. Conveyance or Transfer to a Wholly-owned Restricted
Subsidiary.
Notwithstanding the provisions of Sections 801 and 802, and without
any requirement of complying with any of such provisions, the Company may convey
or transfer its properties and assets substantially as an entirety to another
corporation organized and existing under the laws of the United States of
America or any State or the District of Columbia which is lawfully entitled to
acquire the same; provided, however, that immediately after giving effect to
such conveyance or transfer and to the receipt of the consideration therefor (i)
such other corporation shall be a Wholly-owned Restricted Subsidiary, and (ii)
the Company shall be permitted to become liable for an increased amount of
Secured Funded Debt under the provisions of paragraph (a) of Section 1008, and
prior to such conveyance or transfer there shall have been filed with the
Trustee an Officers' Certificate to the effect that the requirements of the
preceding clauses (i) and (ii) will be complied with in connection with such
conveyance or transfer.
SECTION 804. Limitation on Lease of Properties as Entirety.
The Company shall not lease its properties and assets substantially as
an entirety to any Person.
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ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company,
and the assumption by such successor of the covenants of the Company herein
and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Debt Securities (and if such covenants are
to be for the benefit of less than all series of Debt Securities, stating
that such covenants are expressly being included solely for the benefit of
such series) or any coupons, to convey, transfer, assign, mortgage or
pledge any property to or with the Trustee, or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Debt Securities,
stating that such Events of Default are expressly being included solely to
be applicable to such series); or
(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of (or premium, if any, on) Registered Securities or of principal
of (or premium, if any, on) or any interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities of
other authorized denominations or to permit or facilitate the issuance of
Debt Securities in uncertificated form, provided any such action shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination (a) shall become effective
only when there is no Debt Security Outstanding of any series created prior
to the execution of such supplemental indenture which is entitled to the
benefit of such provisions or (b) shall not apply to any Debt Security
Outstanding; or
(6) to establish the form or terms of Debt Securities of any series
as permitted by Sections 201 and 301; or
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(7) to secure the Debt Securities pursuant to the requirements of
Section 1008 or otherwise; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt 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); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
any provision of this Indenture, provided such other provisions shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
(10) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act, provided such action shall not adversely affect the
interest of Holders of Debt Securities of any series or any related coupons
in any material respect.
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 Debt Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights under this
Indenture of the Holders of such Debt Securities of such series and any related
coupons; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Debt Security or coupon affected
thereby,
(1) change the Stated Maturity of the principal or any installment of
principal of, or any installment of interest on, any Debt Security, or
reduce the principal amount thereof or the interest thereon or any premium
payable upon redemption or repayment thereof, or change any obligation of
the Company to pay additional amounts pursuant to Section 1006 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change any Place of Payment, or the
coin or currency in which any Debt Security or the interest thereon or any
coupon is payable, or impair the right to institute suit
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for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment, on or after the
Redemption Date or Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any series, 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 reduce the requirements of Section 1404 for quorum or voting,
or
(3) modify any of the provisions of this Section, Section 513 or
Section 1012, 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 Outstanding Debt Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1012, or the deletion of this proviso, in accordance with the
requirements of Section 611(b) and 901(8), or
(4) adversely affect the right to repayment, if any, of Debt
Securities of any series at the option of the Holders thereof.
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 Debt Securities, or which
modifies the rights of the Holders of Debt 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 Debt Securities of any other
series.
It shall not be necessary for any Act of Holders of the Debt
Securities 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
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.
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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 Debt Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Debt Securities to Supplemental Indentures.
Debt Securities of any series 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 Debt Securities of any series and any appurtenant coupons 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 Trustee in exchange for Outstanding Debt
Securities of such series and any appurtenant coupons.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Debt Securities and any appurtenant coupons that it will duly and punctually pay
the principal of (and premium, if any) and interest on the Debt Securities in
accordance with the terms of the Debt Securities, any appurtenant coupons and
this Indenture. Any interest due on Bearer Securities on or before Maturity,
other than additional amounts, if any, payable as provided in Section 1006 in
respect of principal of (or premium, if any, on) such a Debt Security, shall be
payable only upon presentation and surrender of the coupon or coupons for such
interest installments as are evidenced thereby as they severally mature.
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Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Debt Securities an office or agency where Debt Securities (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities or coupons) may be presented or surrendered
for payment, where Debt Securities may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Debt Securities and this Indenture may be served. If Debt
Securities of a series are issuable as Bearer Securities, the Company will
maintain, subject to any laws or regulations applicable thereto, an office or
agency in a Place of Payment for such series which is located outside the United
States where Debt Securities of such series and the related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Debt Securities of such series pursuant to Section 1006);
provided, however, that if the Debt Securities of such series are listed on a
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent in any required city
located outside the United States, as the case may be, so long as the Debt
Securities of such series are listed on such exchange. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices or demands may
be made or served at the ____________________________, and the Company hereby
appoints the ______________ its agent to receive all presentations, surrenders,
notices and demands, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Securities of that series pursuant
to Section 1006) at the place specified for the purpose pursuant to Section
301(5).
No payment of principal of, or premium, if any, or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, payment of principal of and any premium and interest (including
additional amounts payable in respect thereof) on any Bearer Security
denominated in Dollars may be made at an office or agency of, and designated by,
the Company located in the United States if (but only if) payment of the full
amount of such principal, premium, interest or additional amounts in Dollars at
all offices outside the United States maintained for the purpose by the Company
in accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions and the Trustee receives an
Opinion of Counsel that such payment within the United States is legal. Unless
otherwise provided as contemplated by Section 301 with respect to any series of
Debt Securities, at the option of the Holder of any Bearer Security or related
coupon, payment may be made by check in the currency designated for such payment
pursuant to the terms of such Bearer Security presented or mailed to an address
outside the United States or by transfer to an account in such currency
maintained by the payee with a bank located outside the United States.
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The Company may also from time to time designate one or more other
offices or agencies (in or outside of such Place of Payment) where the Debt
Securities of one or more series and any related coupons (subject to the
preceding paragraph) may be presented or surrendered for any or all 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 each Place of
Payment for any series of Debt Securities for such purposes. The Company will
give prompt written notice to the Trustee of any such designation and any change
in the location of any such other office or agency.
Section 1003. Money for Debt Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Debt Securities
of such series, 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 with respect
to any series of Debt Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Debt Securities of
such series, deposit with a Paying Agent a sum 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, premium 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 will cause each Paying Agent with respect to any series of
Debt Securities 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 Debt Securities of such series 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 Debt Securities of such series or any appurtenant
coupons) in the making of any payment of principal of (and premium, if any)
or interest on the Debt Securities of such series; and
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(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 terminating its
obligations under this Indenture with respect to Debt Securities of any series
or for any other purpose, pay, or by Company Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any principal and interest received on the Government Obligations
deposited with the Trustee or 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 Debt Security of any series or any
money on deposit with the Trustee or any Paying Agent representing amounts
deducted from the Redemption Price or Repayment Price with respect to unmatured
coupons not presented upon redemption or exercise of the Holder's option for
repayment pursuant to Section 1106 or 1303 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 Debt
Security or any coupon appertaining thereto 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
(including the principal and interest received on Government Obligations
deposited with the Trustee), and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper of
general circulation in the Borough of Manhattan, The City of New York, and each
Place of Payment or mailed to each such Holder, or both, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication or mailing, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 1004. 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 Board of Directors 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.
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Section 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times, provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
Section 1006. Payment of Additional Amounts.
If the Debt Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of any Debt Security of
any series or any coupon appertaining thereto additional amounts upon the terms
and subject to the conditions provided therein. Whenever in this Indenture there
is mentioned, in any context, the payment of the principal of (or premium, if
any) or interest on, or in respect of, any Debt Security of any series or the
net proceeds received on the sale or exchange of any Debt Security of any
series, such mention shall be deemed to include mention of the payment of
additional amounts provided for in the terms of such Debt Securities and this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Debt Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Debt Securities (or if the Debt Securities of
that series will not bear interest prior to Maturity, the first day on which a
payment of principal (and premium, if any) is made), and at least 10 days prior
to each date of payment of principal (and premium, if any) or interest if there
has been any change with respect to the matters set forth in the below-metioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any) or interest on
the Debt Securities of that series shall be made to Holders of Debt Securities
of that series or the related coupons who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Debt Securities of that series. If any such withholding
shall be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of Debt
Securities or coupons and the Company will pay to the Trustee or such Paying
Agent the additional amounts, if any, required by the terms
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of such Debt Securities and the first paragraph of this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary, provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1008. Restriction on the Creation of Secured Funded Debt.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, issue, assume or guarantee, incur or create any Secured Funded
Debt unless immediately thereafter the sum of (i) the aggregate principal amount
of all outstanding Secured Funded Debt of the Company and its Restricted
Subsidiaries (exclusive of any Secured Funded Debt permitted by paragraph (b) of
this Section) plus (ii) the aggregate amount of all Attributable Debt of the
Company and its Restricted Subsidiaries in respect of sale and leaseback
transactions (as defined in Section 1009) does not exceed 5% of Consolidated Net
Tangible Assets.
(b) Compliance with the requirements of Section 1008(a) shall be
determined without regard to (i) Secured Funded Debt of a Restricted Subsidiary
owing to the Company or a Wholly-owned Restricted Subsidiary, (ii) Secured
Funded Debt resulting from the Mortgage of property of the Company or any
Restricted Subsidiary in favor of the United States, or any State thereof, or
any department, agency or instrumentality of the United States or any State
thereof, to secure partial, progress, advance or other payments to the Company
or any Restricted Subsidiary pursuant to the provisions of any contract or
statute, (iii) Secured Funded Debt resulting from Mortgages on property of, or
on any shares of stock or Indebtedness of, any corporation existing at the time
such corporation becomes a Subsidiary, (iv) subject to Section 801, Secured
Funded Debt resulting from Mortgages on property, shares of stock or
Indebtedness existing at the time of acquisition thereof (including acquisition
through merger or consolidation) or to secure the payment of all or any part of
the purchase price or construction cost thereof or to secure any indebtedness
incurred prior to, at the time of, or within 120 days after, the acquisition of
such property or shares or Indebtedness or the completion of any such
construction for the purpose of financing all or any part of the purchase price
or construction cost thereof, (v) Secured Funded Debt resulting from Mortgages
incurred or assumed in connection with an issuance of revenue
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bonds the interest on which is exempt from Federal income tax pursuant to
section 103(b) of the Internal Revenue Code of 1986, as amended (or any
predecessor or successor provision thereof), or (vi) any extension, renewal or
refunding (or successive extensions, renewals or refundings), in whole or in
part (but without increase in amount), of any Secured Funded Debt (and of any
Mortgage securing the same) permitted by the provisions of paragraph (a) of this
Section 1008 or of any Secured Funded Debt (and of any Mortgage securing the
same) outstanding at February 3, 1996 of those Subsidiaries which will
constitute Restricted Subsidiaries upon the execution and delivery of this
Indenture as originally executed or of any Secured Funded Debt (and of any
Mortgage securing the same) of any corporation outstanding at the time such
corporation became a Restricted Subsidiary, provided that the Mortgage securing
such extended, renewed or refunded Secured Funded Debt is limited to the same
property (plus improvements thereon) that secured the Secured Funded Debt so
extended, renewed or refunded immediately prior thereto.
(c) Notwithstanding the foregoing paragraphs of this Section, the
Company or any Restricted Subsidiary may issue, assume, guarantee, incur or
create Secured Funded Debt not permitted by such paragraphs if the Company shall
first make effective provision whereby the Debt Securities (together with, if
the Company shall so determine, any other Indebtedness or any obligations of the
Company or such Restricted Subsidiary then existing or thereafter created
ranking equally with the Debt Securities, including guarantees of Indebtedness
or obligations of others) shall be secured equally and ratably with (or prior
to) such Secured Funded Debt, so long as such Secured Funded Debt shall be so
secured. If the Company shall hereafter make provision to secure the Debt
Securities equally and ratably with (or prior to) any other Indebtedness or
obligations pursuant to this paragraph (c), then (i) the Company will promptly
deliver to the Trustee an Officers' Certificate and Opinion of Counsel stating
that this paragraph (c) has been complied with and that any instruments executed
by the Company or any Restricted Subsidiary in the performance of this paragraph
(c) comply with the requirements hereof, and (ii) the Trustee is hereby
authorized to enter into an indenture or agreement supplemental hereto and to
take such action, if any, as it may deem advisable to enable it to enforce the
rights of the Holders of the Debt Securities as so secured.
Section 1009. Restriction on Sale and Lease-Back Transactions.
The Company will not itself, and it will not permit any Restricted
Subsidiary to, enter into any arrangement with any bank, insurance company or
other lender or investor (not including the Company or any Restricted
Subsidiary) or to which any such lender or investor is a party, providing for
the leasing by the Company or any Restricted Subsidiary for a period, including
renewals, in excess of three years of any Operating Property which has been or
is to be sold or transferred, more than 120 days after the acquisition thereof
or the completion of construction and commencement of full operation thereof, by
the Company or any Restricted Subsidiary to such lender or investor or to any
person to whom funds have been or are to be advanced by such lender or investor
on the security of such Operating Property (herein referred to as a "sale and
leaseback transaction") unless either:
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(1) the Company or such Restricted Subsidiary could create Secured
Funded Debt pursuant to Section 1008 on the Operating Property to be leased
back in an amount equal to the Attributable Debt with respect to such sale
and leaseback transaction without equally and ratably securing the Debt
Securities, or
(2) the Company, within 120 days after the sale or transfer shall
have been made by the Company or by any such Restricted Subsidiary, applies
an amount equal to the greater of (i) the net proceeds of the sale of the
Operating Property sold and leased back pursuant to such arrangement or
(ii) the fair market value of the Operating Property so sold and leased
back at the time of entering into such arrangements (as determined by any
two of the following: the Chairman of the Board of the Company, its Chief
Executive Officer, its President, any Vice President of the Company, its
Treasurer and its Controller) to the retirement of Secured Funded Debt of
the Company, provided that the amount to be applied to the retirement of
Secured Funded Debt of the Company shall be reduced by (a) the principal
amount of any Debt Securities delivered within 120 days after such sale to
the Trustee for retirement and cancellation, and (b) the principal amount
of Secured Funded Debt voluntarily retired by the Company within 120 days
after such sale. Notwithstanding the foregoing, no retirement referred to
in this clause (2) may be effected by payment at maturity or pursuant to
any mandatory sinking fund payment or any mandatory prepayment provision.
SECTION 1010. Restriction on Permitting Unrestricted Subsidiaries to
become Restricted Subsidiaries.
(a) The Company will not permit any Unrestricted Subsidiary to be
designated as a Restricted Subsidiary unless such Subsidiary has outstanding no
Secured Funded Debt and/or Attributable Debt except such Secured Funded Debt and
Attributable Debt as the Company could permit it to become liable for
immediately after becoming a Restricted Subsidiary under the provisions of
Section 1008.
(b) Promptly after the adoption of any Board Resolution designating a
Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted
Subsidiary as a Restricted Subsidiary, a copy thereof shall be filed with the
Trustee, together, in the case of the designation of an Unrestricted Subsidiary
as a Restricted Subsidiary, with an Officers' Certificate stating that the
provisions of this Section have been complied with in connection with such
designation.
SECTION 1011. Officer's Certificate as to Default.
The Company will furnish to the Trustee not more than 120 days after
the end of the Company's fiscal year in each year (beginning with 1997) a brief
certificate from the principal executive, financial or accounting officer or
treasurer or controller of the Company as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture
(such compliance to be determined without regard to any period of grace or
requirement of notice
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provided under this Indenture), and, if he or she has knowledge of any default,
specifying each such default of which the signer has knowledge and the nature
thereof.
SECTION 1012. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1004, 1005 and 1007 to 1010
inclusive with respect to the Debt Securities of any series if, before the time
for such compliance the Holders of at least a majority in principal amount of
the Debt Securities at the time Outstanding 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 DEBT SECURITIES
SECTION 1101. Applicability of Article.
Debt Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Debt Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Debt Securities of any series, the Company
shall, at least 45 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 and the tenor and
terms of the Debt Securities of any series to be redeemed. In the case of any
redemption of Debt Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Debt Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Debt Securities to be Redeemed.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, if less than all the Debt Securities of any series
with like tenor and terms are to be redeemed, the particular Debt Securities to
be redeemed shall be selected not more than 60 days
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prior to the Redemption Date by the Trustee, from the Outstanding Debt
Securities of such series with like tenor and terms 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 for Debt Securities of such series or any
integral multiple thereof which is also an authorized denomination) of the
principal amount of Registered Securities or Bearer Securities (if issued in
more than one authorized denomination) of such series of a denomination larger
than the minimum authorized denomination for Debt Securities of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
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 Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106 not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed, and that interest
thereon shall cease to accrue on and after said date,
(5) the Place or Places of Payment where such Debt Securities,
together in the case of Bearer Securities with all coupons, if any,
appertaining thereto maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price,
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(6) that Bearer Securities may be surrendered for payment only at
such place or places which are outside the United States, except as
otherwise provided in Section 1002,
(7) that the redemption is for a sinking fund, if such is the case,
and
(8) the CUSIP number, if any.
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt 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 and at the expense of the Company.
SECTION 1105. 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, aggregate and hold in trust as provided in Section 1003) an amount of
money and/or Government Obligations the payments of principal and interest on
which when due (and without reinvestment) will provide money on or prior to the
Redemption Date in such amounts as will (together with any money irrevocably
deposited in trust with the Trustee, without investment) be sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Debt Securities or portions thereof
which are to be redeemed on that date; provided, however, that deposits with
respect to Bearer Securities shall be made with a Paying Agent or Paying Agents
located outside the United States except as otherwise provided in Section 1002,
unless otherwise specified as contemplated by Section 301.
SECTION 1106. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt
Securities to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified and from and after such date (unless
the Company shall default in the payment of the Redemption Price and accrued
interest) such Debt Securities shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed, except to
the extent provided below, shall be void. Upon surrender of any such Debt
Security for redemption in accordance with said notice, such Debt 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 on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only upon presentation and surrender of coupons for such
interest (at an office or agency located outside the United States except as
otherwise provided in Section 1002), and provided further, that installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Debt Securities, or one
or
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more Predecessor Securities, registered as such on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 1002.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
SECTION 1107. Debt Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Registered Security or Registered Securities of the same
series and of like tenor and terms, of any authorized denominations as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
as contemplated by Section 301 for Debt Securities of such series.
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The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to an
"optional sinking fund payment". If provided for by the terms of Debt Securities
of any series, the amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Debt
Securities.
The Company (1) may deliver Outstanding Debt Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) may apply as a credit Debt Securities of a series which have
been redeemed either at the election of the Company pursuant to the terms of
such Debt Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debt Securities of such series required to be made pursuant to the terms of such
Debt Securities as provided for by the terms of such series; provided that such
Debt Securities have not been previously so credited. Such Debt Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Debt Securities in lieu
of cash payments pursuant to this Section 1202, the principal amount of Debt
Securities to be redeemed in order to exhaust the aforesaid cash payment shall
be less than $100,000, the Trustee need not call Debt Securities for redemption,
except upon Company Request, and such cash payment shall be held by the Trustee
or a Paying Agent and applied to the next succeeding sinking fund payment,
provided, however, that the Trustee or such Paying Agent shall at the request of
the Company from time to time pay over and deliver to the Company any cash
payment so being held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Debt Securities purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
SECTION 1203. Redemption of Debt Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash, the portion thereof, if any, which is to be
satisfied by crediting Debt Securities of that series pursuant to Section 1202
and the basis for any such credit and, prior to or concurrently with the
delivery of such Officers' Certificate, will also deliver to the Trustee any
Debt Securities to be so credited and not theretofore delivered to the Trustee.
Not less than 30 days (unless a shorter period shall be satisfactory to the
Trustee) before each such sinking fund
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payment date the Trustee shall select the Debt Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 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 1104. Such notice having been
duly given, the redemption of such Debt Securities shall be made upon the terms
and in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Debt Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
their terms and (except as otherwise specified pursuant to Section 301 for Debt
Securities of such series) in accordance with this Article.
SECTION 1302. Repayment of Debt Securities.
Each Debt Security which is subject to repayment in whole or in part
at the option of the Holder thereof on a Repayment Date shall be repaid at the
applicable Repayment Price together with interest accrued to such Repayment Date
as specified pursuant to Section 301.
SECTION 1303. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for repayment
shall, as conditions to such repayment, surrender the Debt Security to be repaid
in whole or in part together with written notice of the exercise of such option
at any office or agency of the Company in a Place of Payment, not less than 30
nor more than 45 days prior to the Repayment Date; provided, however, that
surrender of Bearer Securities together with written notice of exercise of such
option shall be made at an office or agency located outside the United States
except as otherwise provided in Section 1002. Such notice, which shall be
irrevocable, shall specify the principal amount of such Debt Security to be
repaid, which shall be equal to the minimum authorized denomination for such
Debt Security or an integral multiple thereof, and shall identify the Debt
Security to be repaid and, in the case of a partial repayment of the Debt
Security, shall specify the denomination or denominations of the Debt Security
or Debt Securities of the same series to be issued to the Holder for the portion
of the principal of the Debt Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and
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the Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Bearer Security shall surrender to the Trustee or any Paying
Agent any such missing coupon in respect of which a deduction shall have been
made from the Repayment Price, such Holder shall be entitled to receive the
amount so deducted without interest thereon; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States except as otherwise provided in Section 1002.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series, of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Bearer Security so
surrendered a new Registered Security or Securities or new Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series of any authorized
denomination or denominations specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Debt Security so
surrendered which is not to be paid; provided, however, that the issuance of a
Registered Security therefor shall be subject to applicable laws and
regulations, including provisions of the United States Federal income tax laws
and regulations in effect at the time of the exchange; neither the Company, the
Trustee nor the Security Registrar shall issue Registered Securities for Bearer
Securities if it has received an Opinion of Counsel that as a result of such
issuance the Company would suffer adverse consequences under the United States
Federal income tax laws then in effect and the Company has delivered to the
Trustee a Company Order directing the Trustee not to make such issuances
thereafter unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Order to the
Security Registrar.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Debt Securities shall
relate, in the case of any Debt Security repaid or to be repaid only in part, to
the portion of the principal of such Debt Security which has been or is to be
repaid.
SECTION 1304. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Debt Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, at any time prior to any Repayment Date to designate one or more
Remarketing Entities to purchase, at a price equal to the Repayment Price, Debt
Securities of such series from the Holders thereof who give notice and surrender
their Debt Securities in accordance with Section 1303.
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SECTION 1305. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and
the Debt Securities so to be repaid having been surrendered as aforesaid, such
Debt Securities shall, unless purchased in accordance with Section 1304, on the
Repayment Date become due and payable at the price therein specified and from
and after the Repayment Date such Debt Securities shall cease to bear interest
and shall be paid on the Repayment Date, and the coupons for such interest
appertaining to Bearer Securities so to be repaid, except to the extent provided
above, shall be void, unless the Company shall default in the payment of such
price in which case the Company shall continue to be obligated for the principal
amount of such Debt Securities and shall be obligated to pay interest on such
principal amount at the rate borne by such Debt Securities from time to time
until payment in full of such principal amount.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
If Debt Securities of a series are issuable in whole or in part as
Bearer Securities, a meeting of Holders of Debt Securities of such series may be
called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other Act provided by this Indenture to be made, given or taken by Holders of
Debt Securities of such series.
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Debt
Securities of any series issuable as Bearer Securities for any purpose specified
in Section 1401, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Debt Securities of any series, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days prior to the date fixed for
the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 25% in principal amount of the Outstanding Debt
Securities of any series shall have requested the Trustee to call a meeting of
the Holders of Debt Securities of such series for any purpose specified in
Section 1401, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the
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Holders of Debt Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, or in London for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in subsection (a) of this
Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Debt Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding Debt
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Debt Securities of
such series by such Holder or Holders. The only Persons who shall be entitled to
be present or to speak at any meeting of Holders of Debt Securities of any
series shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of a series shall constitute a quorum for a meeting
of Holders of Debt Securities of such series. In the absence of a quorum within
30 minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Debt Securities of such series, be
dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such adjourned meeting. Notice of
this reconvening of any adjourned meeting shall be given as provided in Section
1402(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Debt Securities of
such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of majority in principal amount of the Outstanding Debt Securities of that
series, provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other Act which this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding Debt
Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in principal amount of the
Outstanding Debt Securities of that series.
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Any resolution passed or decision taken at any meeting of Holders of
Debt Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Debt Securities of such series and the related
coupons, whether or not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Debt Securities of such series in regard to proof of the
holding of Debt Securities of such series and of the appointment of proxies and
in regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Debt Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in the
manner specified in Section 104 or, in the case of Bearer Securities, by having
the signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Debt Securities as provided in Section 1402(b),
in which case the Company or the Holders of Debt Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairperson. A permanent chairperson and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Debt Securities of such series represented
at the meeting.
(c) At any meeting each Holder of a Debt Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of Debt
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Debt Security
challenged as not Outstanding and ruled by the chairperson of the meeting not to
be Outstanding. The chairperson of the meeting shall have no right to vote,
except as a Holder of a Debt Security of such series or proxy.
(d) Any meeting of Holders of Debt Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Debt Securities of such
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series represented at the meeting; and the meeting may be held as so adjourned
without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Debt Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Debt Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Debt Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Debt Securities of
any series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1401. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
DEFEASANCE
SECTION 1501. Termination of Company's Obligations.
If this Section 1501 is specified, as contemplated by Section 301, to
be applicable to any series of Debt Securities and if the Company deposits
irrevocably in trust with the Trustee money and/or Government Obligations the
payments of principal and interest on which when due (and without reinvestment)
will provide money in such amounts as will (together with any money irrevocably
deposited in trust with the Trustee, without investment) be sufficient to pay
the principal of (and premium, if any) and any installment of principal of (and
premium, if any) or interest when due on the Debt Securities of such series and
any coupons appertaining thereto on the Stated Maturity of such principal or
interest or, if such series may be redeemed by the Company prior to the Stated
Maturity thereof and the Company shall have given irrevocable instructions to
the Trustee to effect such redemption, at the date fixed for such redemption
pursuant to Article Eleven, and any mandatory sinking fund, repayment or
analogous payments thereon on the scheduled due dates therefor, the Company's
obligations under Sections 801, 803, 804, 1005, 1007, 1008, 1009 and 1010 and
any other covenant determined pursuant to Section 301
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to be subject to this Section shall terminate and Sections 501(4) (with respect
to Sections 801, 803, 804, 1005, 1007, 1008, 1009 and 1010), 501(5), 501(6),
501(7) and 501(8) (if specified as contemplated by Section 301) shall be deemed
not to be an Event of Default, in each case with respect to the Debt Securities
of the series for which such deposit was made; provided, however, that (i) no
Event of Default with respect to the Debt Securities of such series under
Section 501(6) or 501(7) or event that with notice or lapse of time or both
would constitute such an Event of Default shall have occurred and be continuing
on the 91st day after such date, (ii) such deposit will not result in a breach
of, or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound, and (iii)
such termination shall not relieve the Company of its obligations under the Debt
Securities of such series and this Indenture to pay when due the principal of
(and premium, if any) and interest and additional amounts on such Debt
Securities if such amounts are not paid (or payment is not provided for) when
due from the money and Government Obligations (and the proceeds thereof) so
deposited.
It shall be a condition to the deposit of cash and/or Government
Obligations and the termination of the Company's obligations pursuant to the
provisions of this Section with respect to the Debt Securities of any series
under Sections 801, 803, 804, 1005, 1007, 1008, 1009 and 1010 and any other
covenant determined pursuant to Section 301 to be subject to this Section and
the inapplicability of the Events of Default contained in Sections 501(4),
501(5), 501(6), 501(7) and 501(8) to the extent set forth above pursuant to the
provisions of this Section with respect to Debt Securities of any series that
the Company deliver to the Trustee (i) an Officers' Certificate to the effect
that under the laws in effect on the date such money and/or Government
Obligations are deposited with the Trustee, the amount thereof will be
sufficient, after payment of all Federal, state and local taxes in respect
thereof payable by the Trustee, to pay principal (and premium, if any) and
interest when due on the Debt Securities of such series; and (ii) an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated in this
Section have been complied with.
It shall be an additional condition to the deposit of cash and/or
Government Obligations and the termination of the Company's obligations pursuant
to the provisions of this Section under Sections 801, 803, 804, 1005, 1007,
1008, 1009 and 1010 and any other covenant determined pursuant to Section 301 to
be subject to this Section and the inapplicability of the Events of Default
contained in Section 501(4), 501(5), 501(6), 501(7) and 501(8) to the extent set
forth above pursuant to the provisions of this Section, with respect to the Debt
Securities of any series then listed on the New York Stock Exchange, that the
Company deliver an Opinion of Counsel that the Debt Securities of such series
will not be delisted from the New York Stock Exchange as a result of such
deposit and termination.
After a deposit as provided herein, the Trustee shall, upon Company
Request, acknowledge in writing the discharge of the Company's obligations
pursuant to the provisions of this Section with respect to the Debt Securities
of such series under Sections 801, 803, 804, 1005,
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1007, 1008, 1009 and 1010 and any other covenant determined pursuant to Section
301 to be subject to this Section and the inapplicability of the Events of
Default contained in Sections 501(4), 501(5), 501(6), 501(7) and 501(8) to the
extent set forth above.
SECTION 1502. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay to the Company
upon Company Request any money or Government Obligations not required for the
payment of the principal of (and premium, if any) and interest on the Debt
Securities of any series for which money or Government Obligations have been
deposited pursuant to Section 1501 held by them at any time.
The Trustee and any Paying Agent shall promptly pay to the Company
upon Company Request any money held by them for the payment of principal (and
premium, if any) and interest that remains unclaimed for two years after the
Maturity of the Debt Securities for which a deposit has been made pursuant to
Section 1501. After such payment to the Company, the Holders of the Debt
Securities of such series and any related coupons shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
SECTION 1503. Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the deposited Government
Obligations or the principal or interest received on such Government
Obligations.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
DAYTON HUDSON CORPORATION
By______________________________________
Its__________________________________
[CORPORATE SEAL]
Attest:
_____________________________
Secretary
_______________________________________
By_____________________________________
Its_________________________________
[CORPORATE SEAL]
Attest:
_____________________________
Trust Officer
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STATE OF MINNESOTA )
)SS.
COUNTY OF HENNEPIN )
On the ____ day of __________, 1996, before me personally came
___________________, to me known, who, being duly sworn, did depose and say that
he resides at ______________________________; that he is a ___________________
of Dayton Hudson Corporation, a corporation described in and which executed the
above instrument; that he knows the seal of said corporation; that it was so
affixed pursuant to the authority of the Board of Directors of said corporation;
and that he signed his name thereto pursuant to like authority.
_________________________________________
Notary Public
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STATE OF ____________ )
)SS.
COUNTY OF ___________ )
On the _____ day of ______________, 1996, before me personally came
________________, to me known, who, being duly sworn, did depose and say that
he resides at _______________________________________________; that he is an
________________________________________ of ______________________________, a
_____________________ described in and which executed the above instrument; that
he knows the seal of said corporation; that it was so affixed pursuant to the
authority of the Board of Directors of said corporation; and that he signed his
name thereto pursuant to like authority.
_________________________________________
Notary Public
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EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons]
Certificate
DAYTON HUDSON CORPORATION
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of ______________,
1996 (the "Indenture") between Dayton Hudson Corporation and ________________
(the "Trustee"), covering the above-captioned Debt Securities. This is to
certify that as of the date hereof, __________________ principal amount of Debt
Securities credited to you for our account (i) is owned by persons that are not
United States Persons, as defined below; (ii) is owned by United States Persons
that are (a) foreign branches of United States financial institutions (as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States Persons who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution encloses herewith a
certificate in the form of Exhibit A-2 to the Indenture); or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)), which United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) certify that they have not acquired the Debt Securities for purposes of
resale directly or indirectly to a United States Person or to a person within
the United States or its possessions.
[Insert if certificate does not relate to an interest payment--We
undertake to advise you by tested telex followed by written confirmation if the
above statement as to beneficial ownership is not correct on the date of
delivery of the above-captioned Debt Securities in bearer form as to all of such
Debt Securities with respect to such of said Debt Securities as then appear in
your books as being held for our account.] We understand that this certificate
is required in connection with United States tax laws. We irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate. "United States Person" shall mean a citizen or resident of the
United States of America (including the District of Columbia), a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof or an estate or trust that is
subject to United States Federal income taxation regardless of the source of its
income.
[This certificate excepts and does not relate to ___________ principal
amount of Debt Securities credited to you for our account and to which we are
not now able to make the certification set forth
<PAGE>
above. We understand that definitive Debt Securities cannot be delivered and
interest cannot be paid until we are able to so certify with respect to such
principal amount of Debt Securities.]*
Dated: _________________
[To be dated on or after
___________________ (the date
determined as provided in the
Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
__________________________________________
(Authorized Signatory)
Name:_____________________________________
Title:____________________________________
___________________
*Delete if inappropriate
A-2
<PAGE>
EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
DAYTON HUDSON CORPORATION
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of _________________,
1996 (the "Indenture"), between Dayton Hudson Corporation and ______________
____________________________, relating to the offering of the above-captioned
Debt Securities (the "Debt Securities"). Unless herein defined, terms used
herein have the same meaning as given to them in the Indenture.
The undersigned represents that it is a branch located outside the United
States of a United States securities clearing organization, bank or other
financial institution (as defined in U.S. Treasury Regulation Section 1.165-
12(c)(1)(v)) that holds customers' securities in the ordinary course of its
trade or business and agrees, and authorizes you to advise the issuer or the
issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Debt Securities in bearer
form.
We understand that this certificate is required in connection with the
United States tax laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal
proceedings with respect to the matters covered by this certificate.
Dated: _________________
[To be dated on or after
___________________ (the
date determined as provided
in the Indenture)]
[Name of Person Entitled to Receive Bearer Security]
___________________________________________________
(Authorized Signatory)
Name:______________________________________________
Title:_____________________________________________
<PAGE>
EXHIBIT B
[Form of Certificate to be Given by Euroclear and Cedel S.A.
in Connection with the Exchange of All or a Portion of a
Temporary Global Security or to Obtain
Interest Prior to Exchange]
Certificate
DAYTON HUDSON CORPORATION
[Insert title or sufficient description of Debt Securities
to be delivered]
We refer to that portion, __________________, of the Global Security
representing the above-captioned issue [which is herewith submitted to be
exchanged for definitive Debt Securities]* [for which we are seeking to obtain
payment of interest]* (the "Submitted Portion"). This is to certify, pursuant
to the Indenture dated as of _________________, 1996 (the "Indenture") between
Dayton Hudson Corporation and __________________________ (the "Trustee"), that
we have received in writing, by tested telex or by electronic transmission from
member organizations with respect to each of the persons appearing in our
records as being entitled to a beneficial interest in the Submitted Portion a
Certificate of Beneficial Ownership by a Non-United States Person or by Certain
Other Persons [and, in some cases, a Certificate of Status as a Foreign Branch
of a United States Financial Institution, authorizing us to inform the issuer or
the issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder]* substantially in the form of Exhibit A-1 [and A-2]* to
the Indenture.
We hereby request that you deliver to the office of _________________ in
___________ definitive Bearer Securities in the denominations on the attached
Schedule A.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
Dated: ______________________
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the Euroclear
System] [CEDEL S.A.]
By: ____________________________________________
___________________
*Delete if inappropriate.
<PAGE>
Exhibit 4(p)
COUNTERSIGNED AND REGISTERED:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
TRANSFER AGENT
AND REGISTRAR
AUTHORIZED OFFICER
COMMON
NUMBER STOCK
ND PAR VALUE SHARES
- -- $.3333 PER SHARE
H
INCORPORATED UNDER
THE LAWS OF THE STATE SEE REVERSE FOR
OF MINNESOTA CERTAIN DEFINITIONS
DAYTON HUDSON CORPORATION
This Certifies that
is the owner of
FULLY-PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF Dayton Hudson
Corporation, transferable on the books of the Corporation by the holder
hereof in person or by duly authorized attorney upon surrender of this
certificate properly endorsed. This certificate and the shares represented
hereby are issued and shall be held subject to all the provisions of the
Articles of Incorporation of the Corporation and all amendments thereto,
copies of which are on file with the Transfer Agent, to all of which the
holder, by acceptance hereof, assents. This certificate is not valid unless
countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
CORPORATE
DATED SEAL
SECRETARY CHAIRMAN AND CEO
<PAGE>
DAYTON HUDSON CORPORATION
The shares of stock of the Corporation are subject to certain rights,
preferences and restrictions. A full statement of the classes of stock and of
the series thereof, the number of shares in each class and series, and the
relative rights, voting power, preferences and restrictions granted to or
imposed upon the shares of stock of each class and series is contained in the
Articles of Incorporation of the Corporation, as amended from time to time, a
copy of which will be furnished to any shareholder upon request and without
charge. Any such request should be addressed to the Secretary of the Corporation
at its principal office or to the Transfer Agent.
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in a Rights Agreement between Dayton Hudson Corporation and
First Chicago Trust Company of New York, dated as of September 11, 1996 (the
"Rights Agreement"), the terms of which (including restrictions on the transfer
of such Rights) are hereby incorporated herein by reference and a copy of which
is on file at the principal executive offices of Dayton Hudson Corporation.
Under certain circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be evidenced by
this certificate. Dayton Hudson Corporation will mail to the holder of this
certificate a copy of the Rights Agreement without charge following receipt of a
written request therefor. Under certain circumstances, as set forth in the
Rights Agreement, Rights that are or were beneficially owned by an Acquiring
Person or any Affiliate or Associate thereof (as such terms are defined in the
Rights Agreement) may become null and void.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
---------------------
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to Minors
JT TEN - as joint tenants with right of
survivorship and not as tenants Act
in common ------------------------
(State)
Additional abbreviations may also be used though not in the above list.
For value received, _________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- -----------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- --------------------------------------------------------------------------------
Shares
- --------------------------------------------------------------------------
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
----------------------------------------
Attorney to transfer the said stock on the books of the within-named Corporation
with full power of substitution in the premises.
Dated,
---------------------
---------------------------------
<PAGE>
Exhibit 5
[Dayton Hudson Letterhead]
September 27, 1996
Dayton Hudson Corporation
777 Nicollet Mall
Minneapolis, Minnesota 55402-1055
RE: Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
I am Senior Vice President, General Counsel and Secretary of Dayton Hudson
Corporation (the "Corporation") and, as such, I and the attorneys that I
supervise have acted as counsel for the Corporation in the preparation of a
Registration Statement on Form S-3 (the "Registration Statement") to be filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, (the "Securities Act") in connection with the proposed offer and sale
of the following securities (the "Securities") of the Corporation having an
aggregate initial offering price of up to $228,800,000:
(i) unsecured debt securities (the "Debt Securities"), issuable directly
or upon exercise of Warrants (as defined below);
(ii) preferred stock, $.01 par value per share, (the "Preferred Stock") of
the Corporation, interests in which may be evidenced by appropriately prepared
depositary shares (the "Depositary Shares"), issuable directly or upon
exercise of Warrants (as defined below);
(iii) common stock, $.3333 par value per share (the "Common Stock") of the
Corporation, issuable directly or upon conversion of Debt Securities or
Preferred Stock, or Depositary Shares, or upon exercise of Warrants (as
defined below); and
(iv) warrants to purchase Debt Securities, Preferred Stock, Depositary
Shares or Common Stock (collectively, the "Warrants").
The Securities may be offered separately or as part of units with other
Securities, in separate series, in amounts, at prices, and on terms to be set
forth in the prospectus and one or more supplements to the prospectus
(collectively, the "Prospectus") constituting a part of the Registration
Statement, and in the Registration Statement. The term "Securities", as used
herein, shall incorporate the definition of the term "Offered Securities"
contained in the Prospectus and the Registration Statement.
<PAGE>
Dayton Hudson Corporation
September 27, 1996
Page 2
The Debt Securities are to be in the forms filed as Exhibits 4(g) and 4(o)
to the Registration Statement, whichever is appropriate and with appropriate
insertions, and are to be issued under one or more indentures in the form filed
as Exhibit 4(f) to the Registration Statement, with appropriate insertions (the
"Indenture"), to be entered into by the Corporation and a trustee or trustees to
be named by the Corporation. The shares of Preferred Stock are to be evidenced
by the forms of preferred stock certificate filed as Exhibits 4(i) and 4(j) to
the Registration Statement, whichever is appropriate and with appropriate
insertions. Each series of Preferred Stock is to be issued under the
Corporation's Restated Articles of Incorporation, as amended, (the "Articles of
Incorporation") and a certificate of designations (a "Certificate of
Designations") to be approved by the Board of Directors of the Company or a
committee thereof and filed with the Secretary of State of the State of
Minnesota (the "Minnesota Secretary of State") in accordance with Section
302A.401 of the Minnesota Business Corporation Act. The Depositary Shares are to
be issued under a deposit agreement in the form filed as Exhibit 4(k) to the
Registration Statement, with appropriate insertions, (the "Deposit Agreement")
to be entered into by the Corporation, a depositary to be named by the
Corporation, and the holders from time to time of depositary receipts evidencing
Depositary Shares. The Common Stock is to be evidenced by the form of common
stock certificate filed as Exhibit 4(p) to the Registration Statement, with
appropriate insertions, and issued under the Articles of Incorporation. The
Warrants are to be issued under warrant agreements in the forms filed as
Exhibits 4(l), 4(m) and 4(n) to the Registration Statement, whichever is
appropriate and with appropriate insertions, (the "Warrant Agreements") to be
entered into by the Corporation and warrant agents to be named by the
Corporation.
As part of the corporate action taken and to be taken in connection with
issuance of the Securities (the "Corporate Proceedings"), the Board of Directors
will, before they are issued, authorize the issuance of any Securities other
than the Debt Securities, and certain terms of the Securities to be issued by
the Corporation from time to time will be approved by the Board of Directors of
the Corporation or a committee thereof or certain authorized officers of the
Corporation.
I, or attorneys that I supervise, have examined or are otherwise familiar
with the Articles of Incorporation, the By-Laws of the Corporation, as amended,
the Registration Statement, such of the Corporate Proceedings as have occurred
as of the date hereof, and such other documents, records and instruments as I
have deemed necessary or appropriate for the purposes of this opinion.
<PAGE>
Dayton Hudson Corporation
September 27, 1996
Page 3
Based on the foregoing and the assumptions that follow, I am of the opinion
that:
(i) upon the execution and delivery by the Corporation of the Indenture,
the Indenture will become a valid and binding obligation of the Corporation;
(ii) upon (a) the execution and delivery by the Corporation of the
Indenture, (b) the completion of all required Corporate Proceedings relating
to the issuance of Debt Securities, (c) the due execution and delivery of the
Debt Securities, and (d) the due authentication of the Debt Securities by a
duly appointed trustee, such Debt Securities will be valid and binding
obligations of the Corporation;
(iii) upon (a) the due authorization, execution, acknowledgment, delivery
and filing by the Corporation with, and recording by, the Minnesota Secretary
of State of the applicable Certificate of Designations, (b) the completion of
all required Corporate Proceedings relating to the issuance of Preferred
Stock, and (c) the due execution, issuance and delivery of certificates
representing the Preferred Stock pursuant to such Certificate of Designations,
the Preferred Stock will be validly authorized and issued, fully paid and non-
assessable;
(iv) upon (a) the completion of all required Corporate Proceedings
relating to the issuance of Common Stock, and (b) the execution, issuance and
delivery of the certificates representing Common Stock, the Common Stock will
be validly authorized and issued, fully paid and non-assessable;
(v) upon (a) the completion of all required Corporate Proceedings relating
to the issuance of Warrants, (b) the due execution and delivery of Warrant
Agreements, (c) the due execution and delivery of the related Warrants, and
(d) the due authentication of the related Warrants by the Warrant Agent, such
Warrants will be legally issued, valid and binding obligations of the
Corporation; and
(vi) upon (a) the completion of all required Corporate Proceedings
relating to the issuance of Depositary Shares, (b) the due execution and
delivery of a Deposit Agreement, and (c) the due execution and delivery by the
Corporation of receipts evidencing interests in the Depositary Shares, the
Deposit Agreement will be a valid and binding agreement of the Corporation and
the Depositary Shares will be validly authorized and issued, fully paid and
non-assessable.
The foregoing opinions assume that (a) the consideration designated in the
applicable Corporate Proceedings for any Security shall have been received by
the Corporation in accordance with applicable law; (b) the Indenture and any
Deposit
<PAGE>
Dayton Hudson Corporation
September 27, 1996
Page 4
Agreement or Warrant Agreement shall have been duly authorized, executed and
delivered by all parties thereto other than the Corporation; (c) the
Registration Statement shall have become effective under the Securities Act; and
(d) the Indenture shall have become qualified under the Trust Indenture Act of
1939, as amended. To the extent they relate to enforceability, each of the
foregoing opinions is subject to the limitation that the provisions of the
referenced instruments and agreements may be limited by bankruptcy or other laws
of general application affecting the enforcement of creditors' rights and by
general equity principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
I have also assumed (a) the accuracy and truthfulness of all public records
of the Corporation and of all certifications, documents and other proceedings
examined by me that have been produced by officials of the Corporation acting
within the scope of their official capacities, without verifying the accuracy or
truthfulness of such representations, and (b) the genuineness of such signatures
appearing upon such public records, certifications, documents and proceedings. I
express no opinion as to the laws of any jurisdiction other than the laws of the
State of Minnesota and the federal laws of the United States of America. To the
extent that the governing law provision of a Deposit Agreement or a Warrant
Agreement may relate to the laws of a jurisdiction as to which I express no
opinion, the opinions set forth herein are given as if the law of Minnesota
governs the Deposit Agreement and the Warrant Agreements.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to being named in the Prospectus included therein
under the caption "Validity of Securities" with respect to the matters stated
therein without implying or admitting that I am an "expert" within the meaning
of the Securities Act, or other rules and regulations of the Securities and
Exchange Commission issued thereunder with respect to any part of the
Registration Statement, including this exhibit.
Very truly yours,
/s/ James T. Hale
James T. Hale
Senior Vice President, General Counsel
and Secretary
<PAGE>
Exhibit 23(b)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Dayton Hudson
Corporation for the registration of $228,800,000 in various debt and equity
securities (under a universal shelf registration) and to the incorporation by
reference therein of our report dated March 13, 1996, with respect to the
consolidated financial statements of Dayton Hudson Corporation incorporated by
reference in its Annual Report (Form 10-K) for the year ended February 3, 1996
and the related financial statement schedule included therein, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
September 27, 1996
<PAGE>
Exhibit 24
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Rand V. Araskog
-------------------
Rand V. Araskog
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ L. DeSimone
-----------------
Livio D. DeSimone
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Roger A. Enrico
-------------------
Roger A. Enrico
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ William W. George
---------------------
William W. George
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Roger L. Hale
-----------------
Roger L. Hale
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Betty Ruth Hollander
------------------------
Betty Ruth Hollander
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Michele J. Hooper
-----------------------------------------
Michele J. Hooper
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Mary Patterson McPherson
----------------------------
Mary Patterson McPherson
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Solomon D. Trujillo
-----------------------
Solomon D. Trujillo
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ Robert J. Ulrich
--------------------
Robert J. Ulrich
<PAGE>
DAYTON HUDSON CORPORATION
Power of Attorney
of Director and/or Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of DAYTON HUDSON CORPORATION, a Minnesota corporation, does hereby make,
constitute and appoint ROBERT J. ULRICH, STEPHEN E. WATSON, DOUGLAS A.
SCOVANNER, STEPHEN C. KOWALKE, SARA J. ROSS, WILLIAM E. HARDER, and FRANK R.
SUSHAK, and each or any one of them, the undersigned's true and lawful
attorneys-in-fact, with power of substitution, for the undersigned and in the
undersigned's name, place and stead, to sign and affix the undersigned's name as
such director and/or officer of said Corporation to a Registration Statement or
Registration Statements, on Form S-3, Form S-8, or other applicable form, and
all amendments, including post-effective amendments, thereto, to be filed by
said Corporation with the Securities and Exchange Commission, Washington, D.C.
in connection with the registration under the Securities Act of 1933, as
amended, of debentures or other securities of said Corporation, and any
securities (including securities issued by pass-through trusts) issued in
connection with sale and leaseback transactions entered into by the Corporation,
and to file the same, with all exhibits thereto and other supporting documents,
with said Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform any and all acts necessary or
incidental to the performance and execution of the powers herein expressly
granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
as of this 11th day of January, 1995.
/s/ John R. Walter
------------------
John R. Walter
