<PAGE> 1
As filed with the Securities and Exchange Commission on June 18, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
THE MAY DEPARTMENT STORES COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
NEW YORK 43-0398035
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) 611 OLIVE STREET IDENTIFICATION NO.)
ST. LOUIS, MISSOURI 63101
314-342-6300
</TABLE>
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
THE MAY DEPARTMENT STORES COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 43-1742586
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) 611 OLIVE STREET IDENTIFICATION NO.)
ST. LOUIS, MISSOURI 63101
314-342-6300
</TABLE>
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
RICHARD A. BRICKSON, ESQ.
SECRETARY AND SENIOR COUNSEL
THE MAY DEPARTMENT STORES COMPANY
611 OLIVE STREET
ST. LOUIS, MISSOURI 63101-1799
314-342-6300
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPY TO:
MARGARET L. WOLFF, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
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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,
as market conditions permit.
------------------------
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, 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/
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED TO BE REGISTERED(1) PER UNIT OFFERING PRICE REGISTRATION FEE(2)
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<S> <C> <C> <C> <C>
Guarantee of the Debt Securities.......... $800,000,000 (3) (3) $100
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</TABLE>
(1) Or, in the case of Debt Securities issued at an original issue discount,
such greater principal amount as shall result in an aggregate public
offering price of the amount set forth below or, in the case of Debt
Securities denominated in a currency other than U.S. dollars or a composite
currency, such U.S. dollar amount as shall result from converting the
aggregate public offering price of such Debt Securities into U.S. dollars at
the spot exchange rate in effect on the date such Debt Securities are
initially offered to the public.
(2) The registration fee paid hereby represents the $100 minimum registration
fee as prescribed by Section 6(b) of the Securities Act.
(3) Pursuant to Rule 429 of the Securities Act, the Prospectus included herein
also covers $800,000,000 of Debt Securities from previous registration
statements (Nos. 33-55255 and 33-62075), as to which a registration fee of
$275,862.55 was paid.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933 THE PROSPECTUS
INCLUDED HEREIN ALSO RELATES TO $200,000,000 PRINCIPAL AMOUNT OF DEBT SECURITIES
REGISTERED UNDER REGISTRATION STATEMENT NO. 33-55255, WHICH WAS DECLARED
EFFECTIVE ON OCTOBER 7, 1994 AND $600,000,000 PRINCIPAL AMOUNT OF DEBT
SECURITIES REGISTERED UNDER REGISTRATION STATEMENT NO. 33-62075, WHICH WAS
DECLARED EFFECTIVE ON SEPTEMBER 6, 1995. IN THE EVENT ANY OF SUCH PREVIOUSLY
REGISTERED DEBT SECURITIES ARE OFFERED PRIOR TO THE EFFECTIVE DATE OF THIS
REGISTRATION STATEMENT, THEY WILL NOT BE INCLUDED IN ANY PROSPECTUS HEREUNDER.
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<PAGE> 2
EXPLANATORY NOTE
This Registration Statement on Form S-3 is being filed with the Securities
and Exchange Commission to register under the Securities Act of 1933 the
guarantee by The May Department Stores Company, a Delaware corporation (the
"Guarantor"), of the Debt Securities of The May Department Stores Company, a New
York corporation, and a wholly owned subsidiary of the Guarantor (the
"Company"), registered pursuant to Registration Statement Nos. 33-55255 and
33-62075. Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
included herein also relates to $800,000,000 of Debt Securities registered
pursuant to Registration Statement Nos. 33-55255 and 33-62075. This Registration
Statement constitutes Post-Effective Amendment No. 1 to Registration Statement
Nos. 33-55255 and 33-62075.
<PAGE> 3
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
PROSPECTUS (Subject to Completion)
Issued June 18, 1996
$800,000,000
The May Department Stores Company
DEBT SECURITIES
The May Department Stores Company, a New York corporation (the "Company"),
from time to time may offer its senior debt securities (the "Debt Securities")
in a principal amount sufficient to result in proceeds to the Company of up to
$800,000,000 (or the equivalent in foreign denominated currencies or composite
currencies, based upon the applicable exchange rate at the time of sale). The
Debt Securities will be unconditionally guaranteed (the "Guarantee") by The May
Department Stores Company, a Delaware corporation and the sole shareowner of the
Company (the "Guarantor"). The Debt Securities may be offered as separate series
under one or more Indentures in amounts, at prices and on terms to be set forth
in supplements to this Prospectus. The Company may sell Debt Securities directly
or through agents designated from time to time or to or through one or more
underwriters who will be named in a Prospectus Supplement (the "Prospectus
Supplement"), or an underwriting syndicate including and represented by such
firms. See "Plan of Distribution."
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
------------------------
The terms of the Debt Securities, including, where applicable, the specific
designation, aggregate principal amount, denominations, maturity, premium, if
any, interest rate (which may be fixed or variable) and time of payment of
interest, if any, terms for redemption at the option of the Company or the
holder, terms for sinking fund payments, if any, the name of the trustee under
the indenture relating to the Debt Securities, the initial public offering
price, the names of any underwriters or agents, the applicable compensation of
such underwriters or agents and the other terms in connection with the offering
and sale of the Debt Securities in respect of which this Prospectus is being
delivered, will be set forth in an accompanying Prospectus Supplement.
As used herein, Debt Securities shall include securities denominated in
United States dollars or, at the option of the Company if so specified in the
applicable Prospectus Supplement, in any other currency or in composite
currencies or in amounts determined by reference to an index.
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, 1996
<PAGE> 4
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY THE DEBT SECURITIES OFFERED
BY THIS PROSPECTUS IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY OR THE GUARANTOR SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED
OR INCORPORATED BY REFERENCE HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS
DATE.
------------------------
AVAILABLE INFORMATION
The Company and the Guarantor are subject to the informational requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith file reports and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and other
information filed can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, as well as the following regional offices: Suite
1400, Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661; and
Suite 1300, 7 World Trade Center, New York, New York 10048; and copies of such
material can be obtained from the Public Reference Section of the Commission,
Washington, D.C. 20549 at prescribed rates. In addition, certain of the
Guarantor's securities are listed on the New York Stock Exchange and reports,
proxy statements and other information concerning the Company or the Guarantor
may be inspected at the office of such Exchange.
------------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company are, as of
their respective dates, incorporated into this Prospectus by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
February 3, 1996.
(b) The Company's Quarterly Report on Form 10-Q for the period ended May
4, 1996.
(c) The Company's Current Report on Form 8-K (date of report, April 24,
1996).
(d) The Company's Current Report on Form 8-K (date of report, May 24,
1996).
All documents filed by the Company or the Guarantor, as the case may be,
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Prospectus and prior to the termination of the offering of the
Debt Securities shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such documents.
This Prospectus does not contain all information set forth in the registration
statement of which this Prospectus forms a part or Registration Statement Nos.
33-55255 and 33-62075 and the exhibits thereto, which the Company has filed with
the Commission and to which reference is hereby made.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF
THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST OF SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE, OTHER THAN
EXHIBITS TO SUCH DOCUMENTS. REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO: THE
MAY DEPARTMENT STORES COMPANY, 611 OLIVE STREET, ST. LOUIS, MISSOURI 63101-1799,
ATTENTION: CORPORATE COMMUNICATIONS DEPARTMENT, OR BY TELEPHONE TO THE CORPORATE
COMMUNICATIONS DEPARTMENT AT 314-342-6300.
2
<PAGE> 5
------------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE DEBT
SECURITIES OFFERED HEREBY OR OTHER DEBT SECURITIES OF THE COMPANY AT LEVELS
ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS
MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET
OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
THE COMPANY
The May Department Stores Company (the "Company") is one of the nation's
largest retailing companies. The Company's eight department store divisions
operate 346 department stores in 30 states and the District of Columbia under
the following trade names and are headquartered in the following cities: Lord &
Taylor, New York City; Hecht's, Washington, D.C.; Foley's, Houston;
Robinsons-May, Los Angeles; Kaufmann's, Pittsburgh; Filene's, Boston;
Famous-Barr and L.S. Ayres, St. Louis; and Meier & Frank, Portland, Oregon.
On April 4, 1996, the Company announced that it signed a definitive
agreement to acquire 13 Strawbridge & Clothier department stores in the greater
Philadelphia area in a transaction expected to close in July 1996, subject to
customary conditions, including approval by Strawbridge & Clothier
("Strawbridge") shareowners. As required by the purchase agreement with
Strawbridge, the Company will deliver, at the July closing, subject to later
adjustment, 4.2 million shares of Guarantor common stock and will assume
approximately $264 million of debt and certain other liabilities in exchange for
the Strawbridge department store assets. The Company has also agreed to issue
additional Guarantor common stock in exchange for any cash proceeds from
Strawbridge's divestiture of its other assets including its Clover discount
division, remaining after satisfaction of all Strawbridge liabilities and
obligations. The acquisition will be accounted for as a purchase.
On May 4, 1996, the Company distributed to its shareowners all of the
outstanding common stock of its then wholly-owned subsidiary, Payless
ShoeSource, Inc.
The Company was organized under the laws of the State of New York on June
4, 1910. As of May 4, 1996, the Company employed approximately 106,000 people in
30 states, the District of Columbia and eight offices overseas. The Company's
principal office is at 611 Olive Street, St. Louis, Missouri 63101-1799, and the
Company's telephone number is 314-342-6300.
THE GUARANTOR
The Guarantor was incorporated under the laws of the State of Delaware. The
Guarantor became the sole shareowner of the Company pursuant to a share exchange
implemented on May 24, 1996, which resulted in changing the state of
incorporation of the publicly traded company from New York to Delaware. The
Guarantor's principal office is at 611 Olive Street, St. Louis, Missouri
63101-1799, and the Guarantor's telephone number is 314-342-6300.
USE OF PROCEEDS
The net proceeds from the sale of the Debt Securities will be added to the
general funds of the Company and will be available to retire a portion of its
outstanding commercial paper and other short-term indebtedness, to finance its
operations, and for general corporate purposes, including investments and
acquisitions. Any specific allocation of the net proceeds of an offering of Debt
Securities to a specific purpose will be described in the applicable Prospectus
Supplement.
3
<PAGE> 6
SUMMARY FINANCIAL INFORMATION--HISTORICAL
The following summary financial information presents the historical
operating results of the Company for the 13 week periods ended May 4, 1996 and
April 29, 1995 and for each of the five fiscal years in the period ended
February 3, 1996 and the historical balance sheet data as of May 4, 1996,
February 3, 1996 and January 28, 1995. The following financial information
should be read in conjunction with the consolidated financial statements and
related notes contained in the Company's Annual Report on Form 10-K for the
fiscal year ended February 3, 1996 and the Company's Quarterly Report on Form
10-Q for the period ended May 4, 1996, which are incorporated herein by
reference. Operating results of periods which exclude the Christmas season may
not be indicative of the operating results that may be expected for the full
fiscal year.
SUMMARY OF OPERATIONS
<TABLE>
<CAPTION>
13 WEEKS ENDED
------------------ FISCAL YEAR(1)
(DOLLARS IN MILLIONS, EXCEPT PER MAY 4, APRIL 29, ---------------------------------------------
SHARE) 1996 1995 1995 1994 1993 1992 1991
------ --------- ------- ------- ------ ------ ------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues............................. $2,511 $ 2,218 $10,952 $10,107 $9,562 $9,362 $9,068
Cost and Expenses:
Cost of sales................... 1,755 1,543 7,461 6,879 6,537 6,459 6,275
Selling, general and
administrative expenses....... 528 470 2,081 1,916 1,824 1,859 1,861
Interest expense, net........... 64 58 250 233 244 279 315
------ ------ ------- ------- ------ ------ ------
Total Cost and Expenses....... 2,347 2,071 9,792 9,028 8,605 8,597 8,451
------ ------ ------- ------- ------ ------ ------
Earnings From Continuing Operations
Before Income Taxes................ 164 147 1,160 1,079 957 579(2) 617
Provision for Income Taxes........... 66 60 460 429 379 107(2) 213
------ ------ ------- ------- ------ ------ ------
Net Earnings From Continuing
Operations......................... 98 87 700 650 578 472 404
Net Earnings From Discontinued
Operation.......................... 11 27 55 132 133 131 111
------ ------ ------- ------- ------ ------ ------
Net Earnings Before Extraordinary
Loss............................... 109 114 755 782 711 603 515
Extraordinary Loss Related to Early
Extinguishment of Debt, Net of
Income Taxes....................... -- -- (3) -- -- -- --
------ ------ ------- ------- ------ ------ ------
Net Earnings......................... $ 109 $ 114 $ 752 $ 782 $ 711 $ 603 $ 515
====== ====== ======= ======= ====== ====== ======
Primary Earnings per Share:
Continuing Operations.............. $ 0.37 $ 0.33 $ 2.73 $ 2.53 $ 2.24 $ 1.82 $ 1.56
Discontinued Operation............. 0.05 0.11 0.22 0.53 0.53 0.53 0.45
------ ------ ------- ------- ------ ------ ------
Net Earnings Before Extraordinary
Loss............................ 0.42 0.44 2.95 3.06 2.77 2.35 2.01
Extraordinary Loss................. -- -- (0.01) -- -- -- --
------ ------ ------- ------- ------ ------ ------
Primary Earnings per Share........... $ 0.42 $ 0.44 $ 2.94 $ 3.06 $ 2.77 $ 2.35 $ 2.01
====== ====== ======= ======= ====== ====== ======
Fully Diluted Earnings per Share:
Continuing Operations.............. $ 0.36 $ 0.32 $ 2.61 $ 2.43 $ 2.15 $ 1.76 $ 1.52
Discontinued Operation............. 0.05 0.10 0.21 0.49 0.50 0.50 0.41
------ ------ ------- ------- ------ ------ ------
Net Earnings Before Extraordinary
Loss............................ 0.41 0.42 2.82 2.92 2.65 2.26 1.93
Extraordinary Loss................. -- -- (0.01) -- -- -- --
------ ------ ------- ------- ------ ------ ------
Fully Diluted Earnings per Share..... $ 0.41 $ 0.42 $ 2.81 $ 2.92 $ 2.65 $ 2.26 $ 1.93
====== ====== ======= ======= ====== ====== ======
Ratio of Earnings to Fixed
Charges(3)......................... 2.9 2.8 4.3 4.4 3.9 2.5 2.4
====== ====== ======= ======= ====== ====== ======
</TABLE>
- ------------
(1) Fiscal years 1995, 1994, 1993, 1992 and 1991 ended on February 3, 1996,
January 28, 1995, January 29, 1994, January 30, 1993 and February 1, 1992,
respectively. Fiscal year 1995 included 53 weeks.
(2) Pretax earnings include a net charge of $187 million from special and
nonrecurring items, and income taxes include a tax benefit of $187 million from
special and nonrecurring items.
(3) For purposes of computing the ratios of earnings to fixed charges for the
Company and its subsidiaries, earnings have been calculated by adding to pretax
earnings (a) fixed charges (excluding capitalized interest
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<PAGE> 7
and the pretax equivalent of preferred stock dividend requirements) and (b) the
total of adjustments to recognize only distributed earnings for less than 50%
owned persons accounted for under the equity method and amortization of
previously capitalized interest and then subtracting dividends on ESOP
Preference Shares. Fixed charges have been calculated by adding gross interest
expense (including interest on long-term, short-term and ESOP debt, and
amortization of debt discount and debt issue expense), that portion of rent
expense deemed representative of the interest factor in such rent expense,
preferred stock dividend requirements (pretax equivalent) and the Company's
proportionate share of interest of unconsolidated 50% owned persons and the
Company's proportionate share of interest of a less than 50% owned person for
which a subsidiary of the Company has guaranteed the debt.
CONSOLIDATED BALANCE SHEET DATA
<TABLE>
<CAPTION>
AS OF AS OF
(IN MILLIONS) FEBRUARY 3, 1996 JANUARY 28, 1995
AS OF ---------------- ----------------
MAY 4, 1996
-----------
(UNAUDITED)
<S> <C> <C> <C>
Net Current Assets of Discontinued Operation.......... $ -- $ 232 $ 243
Total Current Assets.................................. 4,888 5,097 4,718
Total Current Liabilities............................. 1,652 1,602 1,689
Working Capital....................................... 3,236 3,495 3,029
Net Noncurrent Assets of Discontinued Operation....... -- 521 551
Total Assets.......................................... 9,440 10,122 9,237
Long-Term Debt........................................ 3,313 3,333 2,864
Deferred Income Taxes................................. 389 378 340
Other Liabilities..................................... 190 204 192
ESOP Preference Shares................................ 356 366 374
Unearned Compensation................................. (331) (346) (357)
Shareowners' Equity................................... 3,871 4,585 4,135
</TABLE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under one or more indentures, the
terms of which will be substantially identical other than as described herein,
with one or more trustees. The indentures may include an Indenture dated as of
June 17, 1996 (the "Indenture") with The First National Bank of Chicago, as
trustee (the "Trustee"), which provides that the amount of Debt Securities
issuable thereunder is unlimited.
The following description of the terms of the Debt Securities sets 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 (the "Offered Debt Securities"), the
trustee with respect to the Offered Debt Securities and the extent, if any, to
which such general provisions may apply to the Offered Debt Securities will be
described in the Prospectus Supplement relating to such Offered Debt Securities.
The Indenture contains, among other things, the following provisions. Except as
otherwise specified, all of the provisions described below appear in the
Indenture. The following summaries of certain provisions of the Indenture do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all provisions of the Indenture, including the definitions
therein of certain terms. Wherever particular sections or defined terms of the
Indenture are referred to it is intended that such sections or defined terms
shall be incorporated herein by reference.
GENERAL
The Indenture provides for the issuance of Debt Securities from time to
time, in one or more series. Reference is made to the Prospectus Supplement
which will describe the following terms of the Offered Debt Securities: (a) the
designation of the Offered Debt Securities; (b) any limit on the aggregate
principal amount of the Offered Debt Securities; (c) the date or dates on which
the Offered Debt Securities will mature; (d) the rate or rates (which may be
fixed or variable) per annum at which the Offered Debt
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<PAGE> 8
Securities will bear interest, if any, and the date from which such interest
will accrue; (e) the dates on which such interest, if any, will be payable and
the Regular Record Dates for such Interest Payment Dates; (f) any mandatory or
optional sinking fund or purchase fund or analogous provisions; (g) if
applicable, the date after which and the price or prices at which the Offered
Debt Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed at the option of the Company or the Holder thereof and
the other detailed terms and provisions of such optional or mandatory
redemption; (h) the place or places of payment of principal of (and premium, if
any) and interest on the Offered Debt Securities; (i) whether the Offered Debt
Securities are issuable as Bearer Securities and, if so, whether Registered
Securities are issuable; (j) special provisions relating to the issuance of any
Bearer Securities of any series; (k) the currency in Dollars, Foreign Currency
or any composite currency of any series; (l) any deletions from, changes in or
additions to Events of Default or covenants of the Company in the Indenture; (m)
the form of Debt Securities, Guarantee and Coupons, if any; and (n) any other
terms of the Offered Debt Securities. (Section 301)
The Debt Securities will be issuable as Registered Securities, as Bearer
Securities or both. Debt Securities of a series may be issuable in global form,
as described below under "Global Securities." Unless the Prospectus Supplement
relating thereto specifies otherwise, Registered Securities denominated in U.S.
dollars will be issued only in denominations of $1,000 or any integral multiple
thereof, and Bearer Securities denominated in U.S. dollars will be issued only
in denominations of $5,000. The Prospectus Supplement relating to a series of
Debt Securities denominated in a foreign or composite currency will specify the
denomination thereof. (Section 302)
At the option of the Holder and subject to the terms of the Indenture,
Bearer Securities (with all unmatured coupons, except as provided below) of any
series will be exchangeable into an equal aggregate principal amount of
Registered Securities or Bearer Securities of the same series (with the same
interest rate and maturity date) and Registered Securities of any series will be
exchangeable into an equal aggregate principal amount of Registered Securities
of the same series (with the same interest rate and maturity date) of different
authorized denominations. If a Holder surrenders Bearer Securities in exchange
for Registered Securities between a Regular Record Date or, in certain
circumstances, a Special Record Date, and the relevant interest payment date,
such Holder will not be required to surrender the coupon relating to such
interest payment date. Registered Securities may not be exchanged for Bearer
Securities. (Section 305)
Debt Securities may be presented for exchange, and Registered Securities
(other than a Book-Entry Security) may be presented for registration of transfer
(with the form of transfer endorsed thereon duly executed), at the office of any
transfer agent or at the office of the Security Registrar, without service
charge and upon payment of any taxes and other governmental charges as described
in the Indenture. Such registration of transfer or exchange will be effected
upon the transfer agent or the Security Registrar, as the case may be, being
satisfied with the documents of title and identity of the person making the
request. Bearer Securities will be transferable by delivery. (Section 305)
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities to be offered and sold at a substantial discount from the
principal amount thereof. If the Offered Debt Securities are Original Issue
Discount Securities, the special Federal income tax, accounting and other
considerations applicable thereto 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 the declaration of acceleration of the maturity thereof upon the
occurrence of an Event of Default and the continuation thereof. (Section 502)
Unless otherwise indicated in a Prospectus Supplement, 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 Company that may adversely affect Holders.
GUARANTEE
The Debt Securities will be unconditionally guaranteed by the Guarantor as
to the payment of the principal of, sinking fund payment, if any, premium, if
any, interest and any Redemption Price with respect to
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<PAGE> 9
the Debt Securities when and as the same shall become due and payable, whether
at maturity, upon acceleration or redemption or otherwise, pursuant to the terms
of the Debt Securities and of the Indenture. Such a Guarantee will be endorsed
on each Debt Security. (Section 1201) The Company, the Guarantor and the Trustee
may, without the consent of any Holders, enter into a supplemental indenture to,
among other things, add any additional Guarantor with respect to all or any
series of Debt Securities. (Section 801)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of (and premium, if any) and interest, if any, on Registered
Securities will be made in the designated currency at the office of such Paying
Agent or Paying Agents as the Company may designate from time to time, except
that at the option of the Company payment of any interest may be made (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer to an account
maintained by the Person entitled thereto as specified in the Security Register.
Unless otherwise indicated in an applicable Prospectus Supplement, payment of
any installment of interest on Registered Securities will be made to the Person
in whose name such Registered Security is registered at the close of business on
the Regular Record Date for such interest. (Sections 307 and 902)
Payment of principal of and premium, if any, and interest on Bearer
Securities will be payable in the currency and in the manner designated in the
Prospectus Supplement, subject to any applicable laws and regulations, at such
paying agencies outside the United States as the Company may appoint from time
to time. The paying agents outside the United States initially appointed by the
Company for a series of Debt Securities will be named in the Prospectus
Supplement. The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agents, except that, if Securities of a
series are issuable as Registered Securities, the Company will be required to
maintain at least one paying agent in each Place of Payment for such series and,
if Securities of a series are issuable as Bearer Securities, the Company will be
required to maintain a Paying Agent in a Place of Payment outside the United
States where Debt Securities of such series and any coupons appertaining thereto
may be presented and surrendered for payment; provided that if the Securities of
such series are listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, for the Securities of such series. (Section 902)
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in global
form ("Global Securities") that will be deposited with, or on behalf of, a
depositary identified in the applicable Prospectus Supplement relating to such
series. Global Securities, if any, issued in the United States are expected to
be deposited with the Depository Trust Company, as Depositary. Global Securities
may be issued in fully registered form and may be issued in either temporary or
permanent form. Unless and until a Global Security is exchanged in whole or in
part for the individual Debt Securities represented thereby, it may not be
transferred except as a whole by the Depositary for such Global Security to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any nominee of
such Depositary to a successor Depositary or any nominee of such successor.
(Section 203)
The specific terms of the depositary arrangement with respect to particular
Debt Securities will be described in the Prospectus Supplement relating to such
Debt Securities. The Company expects that unless otherwise indicated in the
applicable Prospectus Supplement, the following provisions will apply to
depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit on its book-entry registration and transfer
system the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depositary ("Participants"). Such accounts will be designated
by the underwriters, dealers or agents with
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<PAGE> 10
respect to such Debt Securities or by the Company if such Debt Securities are
offered directly by the Company. Ownership of beneficial interests in such
Global Security will be limited to Participants or persons that may hold
interests through Participants. Ownership of beneficial interests in such Global
Security will be shown on, and the transfer of that ownership will be effected
only through, records maintained by the Depositary for such Global Security or
its nominee (with respect to beneficial interests of Participants) and records
of Participants (with respect to beneficial interests of persons who hold
through Participants). The laws of some states require that certain purchasers
of securities take physical delivery of such securities in definitive form. Such
limits and laws may impair the ability to own, pledge or transfer beneficial
interests in a Global Security.
So long as the Depositary for a Global Security or its nominee is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes. Except as
described below or in the applicable Prospectus Supplement, owners of beneficial
interests in a Global Security will not be entitled to have any of the
individual Debt Securities represented by such Global Security registered in
their names, will not receive or be entitled to receive physical delivery of any
such Debt Securities in definitive form and will not be considered the Owners or
Holders thereof.
Payment with respect to Debt Securities represented by a Global Security
registered in the name of a Depositary or its nominee will be made to the
Depositary or its nominee, as the case may be, as the registered owner of the
Global Security. None of the Company, the Guarantor, any Trustee, any Paying
Agent, the Security Registrar or any transfer agent for Debt Securities
represented by a Global Security will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests in the Global Security for such Debt Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
OPTIONAL REDEMPTION
Reference is made to the Prospectus Supplement relating to each series of
Offered Debt Securities for any optional redemption provisions relating to such
Offered Debt Securities.
SINKING FUND
Reference is made to the Prospectus Supplement relating to each series of
Offered Debt Securities for any sinking fund provisions relating to such Offered
Debt Securities.
RESTRICTED AND UNRESTRICTED SUBSIDIARIES; CERTAIN DEFINITIONS
The restrictive provisions of the Indenture applicable to the Company, the
Guarantor and the Restricted Subsidiaries do not apply to Unrestricted
Subsidiaries. The assets and indebtedness of Unrestricted Subsidiaries are not
consolidated with those of the Company and its Restricted Subsidiaries in
calculating Consolidated Net Tangible Assets, Funded Debt or Secured
Indebtedness under the Indenture. Investments by the Company or by its
Restricted Subsidiaries in Unrestricted Subsidiaries are excluded in computing
Consolidated Net Tangible Assets.
"Subsidiary" means a corporation more than 50% of the outstanding Voting
Stock of which is owned, directly or indirectly, by the Company, by one or more
other Subsidiaries or by the Company and one or more other Subsidiaries.
"Unrestricted Subsidiaries" are those Subsidiaries defined as such by the
Indenture, i.e., certain finance Subsidiaries acquired or formed subsequent to
the date of the Indenture, certain foreign Subsidiaries, certain real estate
Subsidiaries and 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). "Restricted Subsidiaries"
are all Subsidiaries other than Unrestricted Subsidiaries. A "Wholly-owned
Restricted Subsidiary" is a Restricted Subsidiary all of the outstanding Funded
Debt and capital stock of which (except directors' qualifying shares) is owned
by the Company and its other Wholly-owned Restricted Subsidiaries. (Section 101)
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<PAGE> 11
"Consolidated Net Tangible Assets" means the total amount of assets of the
Company and its Restricted Subsidiaries (less applicable reserves and other
properly deductible items and after excluding Investments made in Unrestricted
Subsidiaries or in corporations while they are 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 capitalized
leases), except Funded Debt, capital stock and surplus, surplus reserves,
deferred income taxes and deferred investment tax credits, and (ii) goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangibles. (Section 101)
"Funded Debt" includes indebtedness maturing more than 12 months after the
time of 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, guarantees of such
indebtedness or of such obligations of others or of dividends (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
except guarantees of such indebtedness or such obligations which are otherwise
included in the definition of Funded Debt), and in the case of any Subsidiary
all Preferred Stock of such Subsidiary. Funded Debt does not include any
obligations in respect of lease rentals whether or not such obligations would be
included as liabilities on a consolidated balance sheet of the Company and its
Restricted Subsidiaries. The Company or any Restricted Subsidiary shall be
deemed to have assumed Funded Debt secured by any Mortgage upon any of its
properties or assets whether or not it has actually done so. (Section 101)
"Secured Indebtedness" means any Indebtedness 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, provided that
Indebtedness 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 of the Internal Revenue Code of 1986, as amended,
shall not be deemed Secured Indebtedness. (Section 101)
LIMITATION ON LIENS
Unless the aggregate principal amount of all outstanding Secured
Indebtedness of the Company and its Restricted Subsidiaries, the unsecured
Funded Debt of the Restricted Subsidiaries (exclusive of any unsecured Funded
Debt or Secured Indebtedness owed to the Company or a Wholly-owned Restricted
Subsidiary), and the Indebtedness to be secured does not exceed 15% of
Consolidated Net Tangible Assets, the Company may not, and may not permit any
Restricted Subsidiary to, mortgage, pledge or create (by merger or otherwise)
any lien, security interest, conditional sale or other title retention agreement
or other similar encumbrance on any of the assets of the Company or any of its
Restricted Subsidiaries (except to secure Indebtedness to the Company or any of
its Wholly-owned Restricted Subsidiaries) without making effective provision to
secure the Debt Securities at least equally and ratably with such Indebtedness,
so long as such Indebtedness is so secured. The foregoing provision, however,
does not prevent certain purchase money mortgage liens or the refunding or
extension thereof, certain non-recourse liens on real property to reimburse the
Company or any of its Restricted Subsidiaries for the cost or acquisition of or
improvements to such real property, existing Mortgages, tax liens and other
liens incurred in the ordinary course of business which do not materially limit
the use of the property subject thereto in the operation of the business of the
Company or of any Restricted Subsidiary or impair the value of such property for
the purposes of such business, Mortgages on assets of a Restricted Subsidiary
existing on the date it became a Subsidiary, or any refundings or extensions
thereof not exceeding the principal amount of the Indebtedness so refunded, or
extended, and applying only to the same property or assets. (Section 905)
RESTRICTIONS ON MERGERS
Neither the Company nor the Guarantor may consolidate or merge with or into
any other corporation or sell, lease or transfer all or substantially all of its
properties and assets to another corporation, unless (i) the successor
corporation is a corporation organized and existing under the laws of the United
States of America or a state thereof or the District of Columbia and assumes
payment of the principal of (and premium, if any) and interest, if any, on the
Debt Securities and the performance and observance of the Indenture and (ii)
such
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<PAGE> 12
successor corporation shall not, immediately after such merger or consolidation,
or such sale or conveyance, be in default in the performance of any covenant or
condition of the Indenture. (Section 701)
WAIVER, MODIFICATION AND AMENDMENT
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any particular series may waive certain past defaults. (Section
511) The Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities (voting as a class and not by individual series) or, in case
less than all of the several series of Outstanding Debt Securities are affected,
the Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of each series affected, may waive the Company's and the Guarantor's
compliance with certain restrictive provisions. (Section 911) In order to
determine the aggregate principal amount of any Outstanding Debt Securities not
payable in U.S. dollars, the principal amount of the Debt Securities shall be
deemed to be that amount of Dollars that could be obtained for such principal
amount on the basis of the spot rate of exchange for such Foreign Currency or
such currency unit as determined by the Company or by an authorized exchange
rate agent. (Section 101)
Modification and amendment of the Indenture may be made by the Company, the
Guarantor and the Trustee with the consent (i) of the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities (voting as a class
and not by individual series), or (ii) in case less than all of the several
series of Debt Securities then Outstanding are affected by the modification or
amendment, of the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of each series so affected, provided that no such
modification or amendment may, without the consent of the Holder of each Debt
Security affected thereby, (a) change the Stated Maturity of the principal of,
or any installment of principal of or interest on, any Debt Security; (b) reduce
the principal amount of, or the rate of interest, if any, on, or any premium
payable upon the redemption of any Debt Security, or reduce the amount of the
principal of a Discounted Debt Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof; (c) change the place or
currency of payment of principal or premium or interest on any Debt Security;
(d) impair the right to institute suit for the enforcement of any payment on or
with respect to any Debt Security; or (e) reduce the percentages of Holders of
Debt Securities or of Holders of Debt Securities of any particular series
specified in this or the preceding paragraph. Any modification or amendment
which changes or eliminates any covenant or other provision of the 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 the Indenture of the
Holders of Debt Securities of any other series. (Section 802)
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to any
particular series of Debt Securities: (a) failure to pay the principal of (or
premium, if any, on) any Debt Security of that series, or to make any sinking
fund payment on any Debt Security of that series, when due; (b) failure to pay
any interest installment on any Debt Security of that series when due, continued
for 30 days; (c) failure to perform any other covenant of the Company or the
Guarantor (in each case other than a covenant included in the Indenture solely
for the benefit of series of Debt Securities other than that series), continued
for 60 days after written notice; (d) certain events of bankruptcy, insolvency,
or reorganization; and (e) any other defaults provided with respect to Debt
Securities of that series. (Section 501)
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding shall occur and be continuing, then and in every such case
(unless the principal of all the Debt Securities of that series shall have
already become due and payable) the Trustee or the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of that series may declare
to be due and payable immediately by a notice in writing to the Company (and to
the Trustee if given by Holders) the entire principal amount, or, in the case of
Original Issue Discount Securities, such portion of the principal amount as may
be provided for in such Debt Securities, of all the Debt Securities of that
series. At any time after such declaration of acceleration has been made, but
before a judgment or decree for payment of the money due has been obtained by
the Trustee, the Holders of a majority in principal amount of the Outstanding
Debt Securities of that series, by written notice
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to the Company and the Trustee, may, in certain circumstances, rescind and annul
such declaration. (Section 502)
No Holder of any Debt Securities of any particular series shall have any
right to institute any proceeding with respect to the Indenture or for any
remedy thereunder, unless such Holder previously shall have given to the Trustee
written notice of a default with respect to that series and unless also the
Holders of at least 25% of the principal amount of Outstanding Debt Securities
of that series shall have made written request upon the Trustee, and have
offered reasonable indemnity, to institute such proceeding as trustee, and the
Trustee shall not have received direction inconsistent with such request in
writing by the Holders of a majority in principal amount of Outstanding Debt
Securities of that series and shall have neglected or refused to institute such
proceeding within 60 days. However, the right of any Holder of any Debt Security
to enforce the payment of principal and interest due on such Debt Security on or
after the dates expressed in such Debt Security, may not be impaired or
affected. (Sections 506 and 509)
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides, if such provision is made applicable to the Debt
Securities of any series pursuant to Section 301 of the Indenture, that the
Company may elect either (A) to defease and be discharged from any and all
obligations with respect to such Debt Securities (except as otherwise provided
in the applicable Indenture) ("Defeasance") or (B) to be released from its
obligations with respect to such Securities described above under "Limitations
on Liens," and "Restrictions on Mergers" ("Covenant Defeasance"), upon the
irrevocable deposit with the Trustee, in trust for such purpose, of money,
and/or U.S. Government Obligations or Foreign Government Securities (each as
defined) which through the payment of principal and interest in accordance with
their terms will provide money, in an amount sufficient to pay the principal of
(and premium, if any) and interest on such Debt Securities, and any mandatory
sinking fund or analogous payments thereon, on the scheduled due dates therefor.
The Prospectus Supplement may further describe the provisions, if any,
permitting such Defeasance or Covenant Defeasance with respect to the Debt
Securities of a particular series and the effect of such Defeasance or Covenant
Defeasance under Federal tax law. (Section 403)
REGARDING THE TRUSTEE
The Company engages in banking transactions in the ordinary course of
business with The First National Bank of Chicago.
PLAN OF DISTRIBUTION
General. The Company may sell Debt Securities directly or to or through one
or more underwriters, agents or dealers who will be named in the Prospectus
Supplement or an underwriting syndicate, represented by one or more managing
underwriters, that will be named in the Prospectus Supplement relating to an
issue of Offered Debt Securities.
The distribution of the Debt Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities to underwriters,
underwriters may receive compensation in the form of discounts, concessions or
commissions from the Company or from purchasers of Debt Securities for whom they
may act as agents. Underwriters and dealers that participate in the distribution
of Debt Securities may be deemed to be underwriters, and any discounts or
commissions received by them and any profit on the resale of Debt Securities by
them may be deemed to be underwriting discounts and commissions, under the
Securities Act of 1933, as amended (the "Act"). Any such underwriter will be
identified, and any such compensation will be described, in the Prospectus
Supplement.
Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Debt Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in
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the Prospectus Supplement. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a best efforts basis for the period
of its appointment.
As one of the means of direct issuance of the Debt Securities, the Company
may utilize the services of CapitaLink Bond Auctions, Inc. to conduct an
electronic "dutch auction" of the Debt Securities among potential purchasers who
are eligible to participate in the auction of such Debt Securities, if so
described in the Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters,
agents and dealers who participate in the distribution of Debt Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Act.
The Debt Securities are a new issue of securities with no established
trading market. In the event that Debt Securities of a series offered hereunder
are not listed on a national securities exchange, certain broker-dealers may
make a market in the Debt Securities, but will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given that any broker-dealer will make a market in the Debt Securities of any
series or as to the liquidity of the trading market for the Debt Securities.
EXPERTS
The consolidated financial statements and schedules of the Company included
or incorporated by reference in its Annual Report on Form 10-K for the fiscal
year ended February 3, 1996, incorporated by reference in this Prospectus and
elsewhere in the Registration Statement have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with respect
thereto and are included herein in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports.
VALIDITY OF THE OFFERED DEBT SECURITIES
The validity of the Offered Debt Securities and the Guarantee will be
passed upon for the Company and the Guarantor, respectively, by Skadden, Arps,
Slate, Meagher & Flom, New York, New York, and for the underwriters or agents by
counsel to be identified in the Prospectus Supplement. A member of Skadden,
Arps, Slate, Meagher & Flom beneficially owns 4,000 shares of the Guarantor's
common stock, $.50 par value per share (together with the associated preferred
stock purchase rights, the "Common Stock"). Mrs. Helene Kaplan, Esq., of counsel
to Skadden, Arps, Slate, Meagher & Flom, is a member of the Company's and the
Guarantor's boards of directors and owns 8,910 shares of Common Stock.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting discounts and
commissions, will be paid by the Company and are:
<TABLE>
<S> <C>
Filing Fee for Registration Statement.............................. $ 100
Rating Agency Fees................................................. 45,000
Legal Fees and Expenses............................................ 60,000
Accounting Fees and Expenses....................................... 30,000
Blue Sky Fees and Expenses......................................... 25,000
Printing and Engraving Fees........................................ 54,000
Trustee's Fees..................................................... 6,000
Miscellaneous...................................................... 4,000
--------
$224,100
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 7 of the New York Business Corporation Law ("NYBCL") and a
provision of the Company's By-Laws provide for indemnification of directors and
officers under certain conditions including the possibility of indemnification
against liabilities under the Securities Act of 1933 (the "Act"). In addition,
the Company has entered into indemnification agreements with each director and
certain executive officers of the Company. Each indemnification agreement
provides, among other things, (i) for indemnification to the fullest extent
permitted by law against all expenses, judgments, fines, penalties incurred in
connection with, and amounts paid in settlement of, any claim against the
indemnified party, provided it is determined pursuant to the agreement that the
indemnitee is entitled to be indemnified under the applicable standard of
conduct under the NYBCL; (ii) for advancement of expenses to the indemnitee in
connection with the indemnitee's defense of any threatened or pending claim,
provided that if it is determined pursuant to the agreement that the indemnitee
would not be permitted to be indemnified under applicable law, the Company shall
be entitled to be reimbursed by the indemnitee for all such amounts previously
paid; (iii) for the creation of a trust for the benefit of the indemnitee in the
event of a potential change in control of the Company which shall be funded from
time to time at the request of the indemnitee in an amount sufficient to satisfy
the Company's indemnification obligations under the agreement; and (iv) that no
legal action be brought and no cause of action be asserted by or on behalf of
the Company against the indemnitee after the expiration of the earlier of the
applicable statute of limitations or two years from the date of accrual of such
cause of action. Similar indemnification agreements may be entered into from
time to time with additional officers of the Company.
In addition, the Company has a directors' and officers' liability insurance
policy. Paragraph VI of the Underwriting Agreement will provide for
indemnification of directors and officers under certain circumstances.
Section 145 of the Delaware General Corporation Law ("DGCL") provides
generally and in pertinent part that a Delaware corporation may indemnify its
directors and officers against expenses, judgments, fines and settlements
actually and reasonably incurred by them in connection with any civil suit or
action, except actions by or in the right of the corporation, or any
administrative or investigative proceeding, if, in connection with the matters
in issue, they acted in good faith and in a manner they reasonably believed to
be in, or not opposed to, the best interests of the corporation, and in
connection with any criminal suit or proceeding, if in connection with the
matters in issue, they had no reasonable cause to believe their conduct was
unlawful. Section 145 further provides that, in connection with the defense or
settlement of any action by or in the right of the corporation, a Delaware
corporation may indemnify its directors and officers against expenses actually
and reasonably incurred by them if, in connection with the matters in issue,
they acted in good faith in a manner they reasonably believed to be in, or not
opposed to, the best interests of the corporation, and without
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negligence or misconduct in the performance of their duties to the corporation.
Section 145 further permits a Delaware corporation to grant its directors and
officers additional rights of indemnification through by-law provisions and
otherwise.
Article Eleventh of the Amended and Restated Certificate of Incorporation
of the Guarantor (the "Guarantor Charter") and Article VI of Guarantor's By-Laws
provide that the Guarantor shall indemnify its directors and officers to the
fullest extent permitted by the DGCL. Section 102(b)(7) of the DGCL provides
that a certificate of incorporation may contain a provision eliminating or
limiting the personal liability of a director to the corporation or its
shareowners for monetary damages for breach of fiduciary duty as a director
provided that such provision shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the corporation
or its shareowners; (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (iii) under
Section 174 of the DGCL (relating to liability for unauthorized acquisitions or
redemptions of or dividends on, capital stock); or (iv) for any transaction from
which the director derived an improper personal benefit. Article Tenth of the
Guarantor Charter contains such a provision.
The Guarantor intends to enter into indemnification agreements with each
director and certain executive officers of the Guarantor. Each indemnification
agreement is expected to provide, among other things, (1) for indemnification to
the fullest extent permitted by law against all expenses, judgments, fines and
penalties incurred in connection with, and amounts paid in settlement of, any
claim against the indemnified party, provided it is determined pursuant to the
agreement that the indemnitee is entitled to be indemnified under the applicable
standard of conduct under the DGCL; (2) for advancement of expenses to the
indemnitee in connection with the indemnitee's defense of any threatened or
pending claim, provided that if it is determined pursuant to the agreement that
the indemnitee would not be permitted to be indemnified under applicable law,
the Guarantor shall be entitled to be reimbursed by the indemnitee for all such
amounts previously paid; (3) for the creation of a trust for the benefit of the
indemnitee in the event of a potential change in control of the Guarantor which
shall be funded from time to time at the request of the indemnitee in an amount
sufficient to satisfy the Guarantor's indemnification obligations under the
agreement; and (4) that no legal action be brought and no cause of action be
asserted by or on behalf of the Guarantor against the indemnitee after the
expiration of the earlier of the applicable statute of limitations or two years
after the date of accrual of such cause of action. Similar indemnification
agreements may be entered into from time to time with additional officers of the
Guarantor. In addition, the Guarantor has a directors' and officers' liability
insurance policy.
ITEM 16. EXHIBITS
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<S> <C>
1.1. Form of Distribution Agreement (incorporated herein by reference to Exhibit 1 to
the Company's Current Report on Form 8-K, File No. 1-79, dated February 8, 1991).
1.2. Form of Underwriting Agreement (incorporated herein by reference to Exhibit 1 to
the Company's Current Report on Form 8-K, File No. 1-79, dated August 18, 1995).
4.1. Conformed copy of Indenture dated as of June 17, 1996 among the Company, the
Guarantor and The First National Bank of Chicago, as Trustee.
5. Opinion of Skadden, Arps, Slate, Meagher & Flom.
12. Computation of Ratio of Earnings to Fixed Charges (incorporated herein by
reference to Exhibit 12 to the Company's Quarterly Report on Form 10-Q, File No.
1-79, for the period ended May 4, 1996).
23.1. Consent of Arthur Andersen LLP.
23.2. Consent of Skadden, Arps, Slate, Meagher & Flom (included in their opinion filed
as Exhibit 5 to this Registration Statement).
24. Powers of Attorney.
25.1. Statement of Eligibility of Trustee (The First National Bank of Chicago).
</TABLE>
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The form or forms of Debt Securities with respect to each particular
offering of securities registered hereunder will be filed as an exhibit to a
report on Form 8-K and incorporated herein by reference.
ITEM 17. UNDERTAKINGS
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, 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 hereby which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Act,
each filing of a Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of each of the
Registrants pursuant to the foregoing provisions, or otherwise, each of the
Registrants 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 respective Registrant of
expenses incurred or paid by a director, officer or controlling person of the
respective Registrant in the successful defense of any action, suit or
proceeding) is asserted against the respective Registrant by such director,
officer or controlling person in connection with the securities being
registered, the respective Registrant will, unless in the opinion of its
respective counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE> 18
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 ST. LOUIS, STATE OF MISSOURI, ON THE 17TH DAY OF
JUNE, 1996.
THE MAY DEPARTMENT STORES COMPANY
(a New York corporation)
By /S/ RICHARD A. BRICKSON
----------------------------------
RICHARD A. BRICKSON
SECRETARY
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ------------------------------ --------------
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
Director, Chairman of the June 17, 1996
- --------------------------------------------- Board and Chief Executive
DAVID C. FARRELL* Officer
Director and President June 17, 1996
- ---------------------------------------------
JEROME T. LOEB*
Director and Executive Vice June 17, 1996
- --------------------------------------------- Chairman
RICHARD L. BATTRAM*
PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER:
Chief Financial Officer June 17, 1996
- ---------------------------------------------
JOHN L. DUNHAM*
Director and Vice Chairman June 17, 1996
- ---------------------------------------------
EUGENE S. KAHN*
Director and President and June 17, 1996
- --------------------------------------------- Chief Executive Officer of
ANTHONY J. TORCASIO* May Merchandising Company
Director June 17, 1996
- ---------------------------------------------
EDWARD H. MEYER*
Director June 17, 1996
- ---------------------------------------------
RUSSELL E. PALMER*
Director June 17, 1996
- ---------------------------------------------
MICHAEL R. QUINLAN*
Director June 17, 1996
- ---------------------------------------------
WILLIAM P. STIRITZ*
Director June 17, 1996
- ---------------------------------------------
ROBERT D. STOREY*
Director June 17, 1996
- ---------------------------------------------
MURRAY L. WEIDENBAUM*
</TABLE>
*By /S/ RICHARD A. BRICKSON
------------------------------
RICHARD A. BRICKSON
ATTORNEY-IN-FACT
II-4
<PAGE> 19
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 ST. LOUIS, STATE OF MISSOURI, ON THE 17TH DAY OF
JUNE, 1996.
THE MAY DEPARTMENT STORES COMPANY
(a Delaware corporation)
By /S/ RICHARD A. BRICKSON
----------------------------------
RICHARD A. BRICKSON
SECRETARY
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- --------------------------------- --------------
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
Director, Chairman of the June 17, 1996
- --------------------------------------------- Board and Chief Executive
DAVID C. FARRELL* Officer
Director and President June 17, 1996
- ---------------------------------------------
JEROME T. LOEB*
Director and Executive June 17, 1996
- --------------------------------------------- Vice Chairman
RICHARD L. BATTRAM*
PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER:
Chief Financial Officer June 17, 1996
- ---------------------------------------------
JOHN L. DUNHAM*
Director and Vice Chairman June 17, 1996
- ---------------------------------------------
EUGENE S. KAHN*
Director and President and June 17, 1996
- --------------------------------------------- Chief Executive Officer
ANTHONY J. TORCASIO* of May Merchandising
Company
Director June 17, 1996
- ---------------------------------------------
EDWARD H. MEYER*
Director June 17, 1996
- ---------------------------------------------
RUSSELL E. PALMER*
Director June 17, 1996
- ---------------------------------------------
MICHAEL R. QUINLAN*
Director June 17, 1996
- ---------------------------------------------
WILLIAM P. STIRITZ*
Director June 17, 1996
- ---------------------------------------------
ROBERT D. STOREY*
Director June 17, 1996
- ---------------------------------------------
MURRAY L. WEIDENBAUM*
</TABLE>
*By /S/ RICHARD A. BRICKSON
------------------------------
RICHARD A. BRICKSON
ATTORNEY-IN-FACT
II-5
<PAGE> 1
EXHIBIT 4.1
================================================================================
THE MAY DEPARTMENT STORES COMPANY,
A NEW YORK CORPORATION,
THE MAY DEPARTMENT STORES COMPANY,
A DELAWARE CORPORATION, AS GUARANTOR
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
__________________________
GUARANTEED DEBT SECURITIES
__________________________
INDENTURE
DATED AS OF JUNE 17, 1996
_________
================================================================================
<PAGE> 2
The May Department Stores Company
Reconciliation and tie between Trust Indenture Act of
1939 and Indenture, dated as of June 17, 1996
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C> <C>
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . 608
610
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . 613(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 613(b)
(b)(2) . . . . . . . . . . . . . . . . . . . . . . 703(a)(2)
703(b)
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 703(a), 703(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 602
703(a)(6)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . 601(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316 (a) . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . 508
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
- -------------------
<PAGE> 3
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Book-Entry Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
New York Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C>
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Required Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Secured Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Wholly-Owned Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 102. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 103. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 104. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 105. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 106. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 107. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 108. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 111. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 112. Moneys of Different Currencies to be Segregated . . . . . . . . . . . . . . . . . . 16
SECTION 113. Payment to be in Proper Currency . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE TWO SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . 18
SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE THREE THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
<PAGE> 6
<TABLE>
<S> <C> <C>
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . 22
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . 29
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . 30
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE FOUR SATISFACTION, DISCHARGE AND DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of Any Series . . . . . . . . . 35
ARTICLE FIVE REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . 40
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . 41
SECTION 504. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . 42
SECTION 505. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 506. Limitation on Suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 507. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 508. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 509. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 510. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 511. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 512. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 513. Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE SIX THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 601. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 602. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . 47
SECTION 603. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 604. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 605. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
</TABLE>
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<TABLE>
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SECTION 606. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . 48
SECTION 607. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 608. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . 51
SECTION 609. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE SEVEN CONSOLIDATION, MERGER OR SALE . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 701. Consolidation, Merger or Sale . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 702. Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE EIGHT SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 801. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . 53
SECTION 802. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . 54
SECTION 803. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 804. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 805. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 806. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . 56
ARTICLE NINE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 901. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . 57
SECTION 902. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 903. Money for Securities Payments to be Held in Trust . . . . . . . . . . . . . . . . 58
SECTION 904. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 905. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 906. Payment of Taxes and Other Claims. . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 907. Maintenance of Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 908. [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 909. [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 910. Restriction on Permitting Restricted Subsidiaries to Become
Unrestricted Subsidiaries and Unrestricted Subsidiaries to
Become Restricted Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 911. Waiver of Covenant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 912. Statements as to Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE TEN REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1001. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1002. Election to Redeem; Notice to Trustee. . . . . . . . . . . . . . . . . . . . . . . 66
</TABLE>
<PAGE> 8
<TABLE>
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SECTION 1003. Selection by Trustee of Securities to be Redeemed. . . . . . . . . . . . . . . . . . 67
SECTION 1004. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1005. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1006. Securities Payable on Redemption Date. . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1007. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE ELEVEN SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1102. Satisfaction of Sinking Fund Payments With Securities. . . . . . . . . . . . . . . . 70
SECTION 1103. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE TWELVE GUARANTEE OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1201. Unconditional Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1202. Execution of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1203. Assumption by Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
</TABLE>
<PAGE> 9
INDENTURE, dated as of June 17, 1996, among THE MAY DEPARTMENT STORES
COMPANY, a corporation duly organized and existing under the laws of the State
of New York (herein called "Company"), having its principal office at St.
Louis, Missouri, THE MAY DEPARTMENT STORES COMPANY, a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the "Guarantor"), and The First National Bank of Chicago, a national banking
association duly incorporated and existing under the laws of the United States
of America (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company and the Guarantor have duly authorized the
execution and delivery of this Indenture to provide for the issuance from time
to time of the Company's debt securities (the "Securities"), to be issued in
one or more series as provided herein.
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company and the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof, 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;
<PAGE> 10
(2) all other terms used herein which are defined
in the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with generally
accepted accounting principles and, except as to any computation
required or permitted pursuant to, and relating to any covenant of the
Company contained in, any indenture supplemental hereto relating to
any series of Securities, which such computation (unless otherwise
provided in such supplemental indenture) shall be made in accordance
with generally accepted accounting principles as are generally
accepted at the date of such supplemental indenture, or except as
otherwise herein or in any indenture supplemental hereto expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation; 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.
2
<PAGE> 11
"Authorized Newspaper" means a newspaper of general
circulation in the place of publication, printed in the official language of
the country of publication and customarily published on each Business Day,
whether or not published on Saturdays, Sundays or holidays. Whenever
successive weekly publications in an Authorized newspaper are authorized or
required hereunder, they may be made (unless otherwise expressly provided
herein) on the same or different days of the week and in the same or different
Authorized Newspapers.
"Bearer Security" means any Security in the form of bearer
securities established pursuant to Section 201 which is payable to bearer and
is not a Registered Security.
"Board of Directors" of any corporation means either the Board
of Directors of such corporation, the Executive Committee or any other duly
authorized committee of that Board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company or the Guarantor 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.
"Book-Entry Security" means a security evidencing all or part
of a series of Securities, issued to the Depositary for such series of
Securities in accordance with Section 303, and bearing the legend prescribed in
Section 303.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment or the
Corporate Trust Office are authorized or obligated by law to close.
"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 board performing such duties at such time.
3
<PAGE> 12
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means (a) the total amount
of assets (less applicable reserves and other properly deductible items) which
under generally accepted accounting principles 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 under leases, which under generally accepted
accounting principles would be included on such balance sheet, except Funded
Debt, capital stock and surplus, surplus reserves and deferred income taxes and
deferred investment tax credit, and (ii) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other like intangibles,
which in each case under generally accepted accounting principles 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) (x) made in Unrestricted Subsidiaries or (y) 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 in the City of Chicago, at which at any particular time its corporate
trust business shall be administered, which office at the date of initial
execution of this Indenture, as to the Trustee, is One First National Plaza,
Suite 0126, Chicago, Illinois, 60670-0126; except that with respect to the
presentation of Notes for payment or for registration of transfer or exchange,
such term shall mean the office or agency of the Trustee in the Borough of
Manhattan, The City of New York at which at any particular time its corporate
agency business shall
4
<PAGE> 13
be conducted, which office at the date of initial execution of this Indenture,
as to the Trustee, is 14 Wall Street, 8th Floor - Window #2, New York, New York
10005, Attention: Corporate Trust Administration.
"Corporation" includes corporations, associations, companies
and business trusts.
"Coupon" means any interest in coupon appertaining to any
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in global form, including
Book-Entry Securities, 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"
shall be a collective reference to such Persons. "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.
"Dollar" 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.
"Event of Default" has the meaning specified in Section 501.
"Foreign Currency" means a currency issued by the government
of any country other than the United States of America.
5
<PAGE> 14
"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 any such obligations of others 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 other than
guarantees of such indebtedness or any such obligations of others which are
included in clauses (i) or (iii) of this definition, 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 that any
obligations in respect of lease rentals, whether or not such obligations would
be included as liabilities on a consolidated balance sheet of the Company and
its Restricted Subsidiaries, shall not be included in Funded Debt. For the
purposes of this definition the term "indebtedness", when used at any date with
respect to the principal outstanding amount of the Securities, shall mean the
principal amount of the Securities that could be declared due and payable on
that date pursuant to Section 502. 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.
"Guarantee" means the Guarantor's unconditional guarantee of
the payment of the amounts owed with respect to the Securities as more fully
described in Article Twelve.
"Guarantor" means the person named as the "Guarantor" in the
first paragraph of this instrument together with any additional Person who
shall execute a supplemental indenture pursuant to which it shall guarantee
under this Indenture any Securities, in each case, until a successor
corporation shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Guarantor" shall mean such successor
corporation.
6
<PAGE> 15
"Holder" means, with respect to a Registered Security, a
person in whose name a Security is registered in the Security Register and,
with respect to a Bearer Security (or any temporary Global Security), and/or
Coupons, the bearer thereof.
"Indebtedness" means (i) all items of indebtedness or
liability (except capital and surplus) which in accordance with generally
accepted accounting principles 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 clauses (i) or (ii); provided that any obligations in respect of
lease rentals, whether or not such obligations would be included as liabilities
on a consolidated balance sheet of the Company its Restricted Subsidiaries,
shall not be included in Indebtedness. For the purposes of this definition the
term "indebtedness", when used at any date with respect to the principal
outstanding amount of the Securities, shall mean the principal amount of the
Securities that could be declared due and payable on that date pursuant to
Section 502.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"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", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
7
<PAGE> 16
"Investments" means and includes 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 Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Mortgage" means and includes any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or other
similar encumbrance.
"New York Business Day" means each weekday which is not a day
on which banking institutions in New York City are authorized or obligated by
law to close.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the
Controller, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of such corporation, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the Trustee.
"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 pursuant to
Section 502.
8
<PAGE> 17
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption (a) money
in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities or (b)
U.S. Government Obligations or Foreign Government Securities as
contemplated by Section 403 in the necessary amount have been
theretofore deposited with the Trustee in trust for the Holders of
such Securities in accordance with Section 403; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provisions therefor satisfactory
to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
the principal amount of a Security denominated in a foreign currency or
currencies shall be deemed to be that amount of Dollars that could be obtained
for such principal amount on the basis of the spot rate of exchange for such
Foreign Currency or such currency unit as determined by the Company or by an
authorized exchange rate agent provided, however, that in determining whether
the Holders of the requisite principal amount of the Outstanding Securities
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of any Original Issue Discount
Securities that shall be deemed to be Outstanding for such purposes shall be
9
<PAGE> 18
the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 502, and Securities owned by the Company or any
other obligor upon the 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 any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities of 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 Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, join-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of (and premium,
if any) and interest on the Securities of that series are payable as specified
as contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Preferred Stock", as applied to the capital stock of any
corporation, means stock of any class or classes (however
10
<PAGE> 19
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. The definition of the term "Funded Debt" herein includes
within the meaning of Funded Debt any Preferred Stock of a Subsidiary.
"Redemption Date", when used with respect to any 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 Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any 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 Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Required Currency" has the meaning specified in Section 115.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, any
assistant vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer, any trust officer or assistant trust officer, the
controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
11
<PAGE> 20
"Secured Indebtedness" means any Indebtedness 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 Restricted Subsidiary; provided that
Indebtedness 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 of the Internal Revenue Code of 1986, as amended,
shall not be deemed Secured Indebtedness for the purpose of Section 905 of this
Indenture.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meaning 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 Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean 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 Securities of any series shall mean the Trustee with respect to
Securities of that Series.
12
<PAGE> 21
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this instrument was executed,
except as provided in Section 805.
"Unrestricted Subsidiary" means (a)(i) any Subsidiary
substantially all of the physical properties of which are located, or
substantially all of the business of which is carried on, outside the United
States of America, its territories and possessions and Puerto Rico, (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, (iii) May Stores Seventy-Four Corporation and
(iv) 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), (iii) and (iv) 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.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"Voting Stock" means stock of the class or classes of any
corporation having general voting power under ordinary circumstances to elect
at least a majority of the board of directors, managers or trustees of such
corporation (irrespective of whether or not at the time stock of any other
class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency).
"Wholly-Owned Restricted Subsidiary" means any Restricted
Subsidiary all of the outstanding Funded Debt and capital stock of which, other
than directors' qualifying shares,
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is owned by the Company and its other Wholly-owned Restricted Subsidiaries.
SECTION 102. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 103. 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 agent duly appointed in writing; and, except as herein otherwise expressly
provided,
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such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgements of deeds, certifying that
the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The principal amount and serial numbers of
Bearer Securities held by any Person, and the date of his holding the same, may
be proved by the production of such Bearer Securities or by a certificate
executed 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 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, (2) such Bearer Security is produced to the
Trustee by some other Person, (3) such Bearer Security is surrendered in
exchange for a Registered Security or (4) such Bearer Security is no longer
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Outstanding.
(d) The fact and date of execution of any such
instrument or writing pursuant to clause (c) above, 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 clause.
(e) The ownership of Registered Securities shall
be proved by the Security Register.
(f) Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(g) Whenever for purposes of any Act to be taken
hereunder by the Holders of a series of Securities denominated in a Foreign
Currency (or any currency unit), the principal amount of Securities is required
to be determined, the aggregate principal amount of such Securities shall be
deemed to be that amount of Dollars that could be obtained for such principal
amount on the basis of the spot rate of exchange for such Foreign Currency or
such currency unit as determined by the Company or by an authorized exchange
rate agent and evidenced to the Trustee by an officers' Certificate as of the
date taking of such Act by the Holders of the requisite percentage in principal
amount of the Securities is evidenced to the Trustee. An exchange rate agent
may be authorized in advance or from time to time by the Company, and may be
the Trustee or its Affiliate. Any such determination by the Company or by any
such exchange rate agent shall be conclusive and binding on all Holders, the
Company and the Trustee, and neither the Company nor any such exchange rate
agent shall be liable therefor in the absence of bad faith.
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(h) If the Company shall solicit from the Holders
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. If such a record date
is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Securities shall be computed as
of such record date; provided that no such authorization, agreement or consent
by the Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
six months after the record date.
SECTION 104. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it 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.
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SECTION 105. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, (i)
if any of the Securities affected by such event are registered Securities, such
notice to the Holders thereof shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to each such holder affected by such event, at his address as it
appears in the security Register, within the time prescribed for the giving of
such notice and (ii) if any of the Securities affected by such event are Bearer
Securities, notice to the Holders thereof shall be sufficiently given (unless
otherwise herein or in the terms of such Bearer Securities expressly provided)
if published once in an Authorized Newspaper in New York, New York, and in such
other city or cities, if any, as may be specified in such Securities and, if
the Securities of such series are listed on any stock exchange outside the
United States, in any place at which such Securities are listed on a securities
exchange to the extent that such securities exchange so requires, and mailed to
such Persons whose names and addresses as were previously filed with the
Trustee, within the time prescribed for giving such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. If it is
impossible or, in the opinion of the Trustee, impracticable to give any notice
by publication in the manner herein required, then such publication in lieu
thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice as
provided above, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.
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
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not be a condition precedent to the validity of any action taken in reliance
upon such waiver.
SECTION 106. Conflict with Trust Indenture Act.
This Indenture is subject to the Trust Indenture Act and if
any provision hereof limits, qualifies or conflicts with the Trust Indenture
Act, the Trust Indenture Act shall control.
SECTION 107. 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 108. 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 109. Separability Clause.
In case any provision in this Indenture or in the securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
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SECTION 112. Moneys of Different Currencies to be Segregated.
The Trustee shall segregate moneys, funds, and accounts held
by the Trustee hereunder in one currency (or unit thereof) from any moneys,
funds or accounts in any other currencies (or units thereof), notwithstanding
any provision herein which would otherwise permit the Trustee to commingle such
amounts.
SECTION 113. Payment to be in Proper Currency.
The following provisions of this Section 113 shall apply to
the extent permitted by applicable law: In the case of any Security payable in
any particular currency or currency unit (the "Required Currency"), except as
otherwise provided herein, therein or in or pursuant to the related Board
Resolution or supplemental indenture or as contemplated by Section 301, the
obligation of the Company to make any payment of principal, premium or interest
thereon shall not be discharged or satisfied by any tender by the Company, or
recovery by the Trustee, in any currency or currency unit other than the
Required Currency, except to the extent that such tender or recovery shall
result in the Trustee timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is made in other than the
Required Currency, the Trustee may, but shall not be obligated to, take such
actions as it considers appropriate to exchange such other currency or currency
unit for the Required Currency. The costs and risks of any such exchange,
including without limitation the risks of delay and exchange rate fluctuation,
shall be borne by the Company, the Company shall remain fully liable for any
shortfall or delinquency in the full amount of the Required Currency then due
and payable and in no circumstances shall the Trustee be liable therefor. The
Company hereby waives any defense of payment based upon any such tender or
recovery which is not in the Required Currency, or which, when exchanged for
the Required Currency by the Trustee, is less than the full amount of Required
Currency then due and payable.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series and Guarantees and the Coupons,
if any, to be attached thereto shall be in substantially such form as shall be
established by 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 place thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, Guarantees and Coupons,
if any, as evidenced by their execution of the Securities, Guarantees and
Coupons, if any. If temporary Securities of any series are issued in global
form as permitted by Section 312, the form thereof also shall be established as
provided in the preceding sentence. If the forms of Securities, Guarantees and
Coupons, if any, of any series are established by, or by action taken pursuant
to, a Board Resolution, a copy of the Board Resolution together with an
appropriate record of any such action taken pursuant thereto, including a copy
of the approved form of Securities, Guarantees or Coupons, if any, 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
Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities, Guarantees 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 Securities, Guarantees and Coupons, if any.
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SECTION 202. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The First National Bank of Chicago
as Trustee
By:
---------------------------------
Authorized Officer
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in whole or in part in
global form, any such Security may provide that it shall represent the
aggregate or specified amount of Outstanding Securities from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount or changes in the rights of Holders
of Outstanding Securities represented thereby, shall be made in such manner and
by such Person or Persons as shall be specified therein. Any instructions by
the Company with respect to a Security in global form shall be in writing but
need not comply with Section 314(c) of the Trust Indenture Act.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. 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 Securities of any series,
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(1) the title of the Securities of the series
(which shall distinguish the Securities of the series from all other
Securities);
(2) any limit upon the aggregate principal amount
of the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section 304,
305, 306, 806 or 1007);
(3) the date or dates on which the principal (and
premium, if any) of the Securities of the series is payable;
(4) the rate or rates at which the Securities of
the series shall bear interest, if any, the date or dates from which
such interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date for the interest
payable on any Interest Payment Date;
(5) the Person to whom any interest on any
Registered Securities of the series shall be payable if other than the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest and the manner in which, or the Person
to whom, any interest on any Bearer Securities of the series shall be
payable if otherwise then upon presentation and surrender of the
coupons appertaining thereto as they severally mature;
(6) the place or places where the principal of
(and premium, if any) and interest on Securities of the series shall
be payable;
(7) 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 Securities of the series may be redeemed, in
whole or in part, at the option of the Company.
(8) the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to any
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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 Securities of the
series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(9) if other than denominations of $1,000, if
registered and $5,000, if bearer and any integral multiple thereof,
the denominations in which Securities of the series shall be issuable;
(10) if other than the principal amount thereof,
the portion of the principal amount of Securities which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502; and
(11) whether Bearer Securities of the series are
to be issuable and if so, whether Registered Securities are to be
issuable;
(12) the date as of which any Bearer Securities of
the series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the original
issuance of the first Security of the series to be issued;
(13) if Bearer Securities of the series are to be
issuable, whether interest in respect of any portion of a temporary
Bearer Security in global form (representing all of the Outstanding
Bearer Securities of the series) payable in respect of any Interest
Payment Date prior to the exchange of such temporary Bearer Security
for definitive Securities of the series which shall be paid to any
clearing organization with respect to the portion of such temporary
Bearer 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;
(14) the currency of denomination of the
Securities of any series, which may be in Dollars, any Foreign
Currency or any composite currency, including but
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not limited to the ECU, and, if 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
Securities will be made, and the currency or currencies (in addition
to Dollars), if any, 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;
(16) if the amount of payments of principal of
(and premium, if any) or, interest on the Securities of the series may
be determined with reference to an index based on a currency or
currencies other than that in which the Debt Securities are
denominated or designated to be payable, the manner in which such
amounts shall be determined;
(17) if the payments of principal of (and premium,
if any) or the interest on the Securities of the series are to be made
in a Foreign Currency other than the Foreign Currency in which such
Securities are denominated, the manner in which the exchange rate with
respect to such payments shall be determined;
(18) any deletions from, modifications of or
additions to the Events of Default set forth in Section 501 or
covenants of the Company set forth in Article Nine pertaining to the
Securities of the series;
(19) the form of the Securities, Guarantee and
Coupons, if any, of the series;
(20) whether the Securities of such series shall
be issued in whole or in part in global form, including Book-Entry
Securities, and the Depositary for such global Securities;
(21) the application, if any, of Section 403; and
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(22) any other terms of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities and Guarantees (including Coupons, if any) and
Guarantees of any one series shall be substantially identical except 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.
If any of the terms of the series 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.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. In the
absence of any such provisions with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000, if
registered, in denominations of $5,000, if bearer, and any integral multiple of
the applicable denomination.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company and
the Guarantee endorsed thereon shall be executed on behalf of the Guarantor,
respectively, by their respective Chairmen of the Board, their respective
Presidents or one of their respective Vice Presidents, under their respective
corporate seals reproduced thereon attested by the signature of their
respective Secretaries or one of their respective Assistant Secretaries or
Treasurers or one of their respective Assistant Treasurers. The Coupons, if
any, shall be executed on behalf of the Company by its Chairman of the Board,
its President or one of its Vice Presidents attested by its Secretary or any
Assistant Secretary or its Treasurer or one of its Assistant Treasurers.
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The signature of any of these officers on the Securities or Guarantees (and
Coupons, if any) may be manual or facsimile.
Securities and Guarantees (and Coupons, if any) bearing the
manual or facsimile signatures of individuals who were at any time the proper
officers of the Company and the Guarantor shall bind the Company and the
Guarantor, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities
and Guarantees (and Coupons, if any) or did not hold such offices at the date
of such Securities and Guarantees (and Coupons, if any).
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities (with or without
Coupons) of any series executed by the Company, and with Guarantees endorsed
thereon executed by the Guarantor, to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities,
and the Trustee in accordance with the Company Order shall authenticate and
deliver such Securities. If the form or terms of the Securities of the series
have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that,
(a) if established pursuant to a Board Resolution
as permitted by Section 201, the form of such Securities and Coupons, if any,
have been established in conformity with the provisions of this Indenture;
(b) if established pursuant to a Board Resolution
as permitted by Section 301, the terms of such Securities and Coupons, if any,
have been established in conformity with the provisions of this Indenture; and
(c) such Securities, 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
legally binding obligations of the Company, enforceable in accordance with
their terms, subject
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to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors' rights and
to general equity principles.
The Trustee shall have the right to decline to authenticate
and deliver such Securities if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or Responsible Officers shall determine
that such action would expose the Trustee to personal liability to existing
Holders or would adversely affect the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency (or unit including a coin or currency) other
than that of the United States of America if the Trustee reasonably determines
that such Securities impose duties or obligations on the Trustee which the
Trustee is not able or reasonably willing to accept; provided that the Trustee,
upon a Company Request, will resign as Trustee with respect to Securities of
any series as to which such a determination is made, prior to the issuance of
such Securities, and will comply with the request of the Company to execute and
deliver a supplemental indenture appointing a successor Trustee pursuant to
Section 801.
If all of the Securities of a series are not to be originally
issued at the same time, then the documents required to be delivered pursuant
to this Section 303 must be delivered only once, prior to the authentication
and delivery of the first Security of such series; provided, however, that any
subsequent request by the Company to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by the Company that, as of the date of such request, the statements
made in the Opinion of Counsel delivered pursuant to this Section 303 shall be
true and correct as if made on such date.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in whole or in part in global form,
then the Company shall execute and the
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Trustee shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver one or more Securities in
global form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Securities of such
series to be represented by such global Security or Securities, (ii) shall be
registered, if in registered form, in the name of the Depositary for such
Book-Entry Security or Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in certificated form, this Security may not be transferred except as
a whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary" or to such other effect as the Depositary and the Trustee
may agree.
Each Depositary designated pursuant to Section 301 for a
Book-Entry 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. The Trustee shall have no responsibility to determine if the
Depositary is so registered. Each Depositary may enter into an agreement with
the Trustee and the Company governing their respective duties and rights with
regard to Book-Entry Securities.
Each Security shall be dated the date of its authentication,
except that each Bearer Security, including any Bearer Security in global form,
shall be dated as of the date specified as contemplated by Section 301.
No Security or Coupon appertaining thereto shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of one of its authorized officers, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and
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delivered hereunder and is entitled to the benefits of this Indenture. Except
as permitted by Section 306 or 307, the Trustee shall not authenticate and
deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor and form, with or without Coupons of
the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities and Coupons, if any.
Except in the case of temporary Securities in global form,
each of which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company pursuant to Section 902 in a place of Payment
for such series, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Securities of any series (accompanied by any
unmatured Coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor; provided, however, that no definitive Bearer Security shall
be delivered in exchange for a temporary Registered Security; and provided,
further, that no definitive Bearer Security shall be delivered in exchange for
a temporary Bearer Security unless the Trustee shall have received from the
person entitled to receive the definitive Bearer Security a certificate
substantially in the form approved in the
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Board Resolutions relating thereto and such delivery shall occur only outside
the United States. Until so exchanged, the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series except as otherwise specified as
contemplated by Section 301 with respect to the payment of interest on Bearer
Securities in temporary form.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company maintained pursuant to Section 902 in
a Place of Payment being herein sometimes collectively 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. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Registered
Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
902 in a Place of Payment for that series, 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 denominations and of a like aggregate principal
amount.
At the option of the Holder, Registered Securities of any
series (except a Book-Entry Security representing all or a portion of the
Securities of such series) may be exchanged for other Registered Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Registered Securities to be exchanged
at such office or agency. Registered Securities may not be exchanged for
Bearer Securities.
At the option of the Holder, Bearer Securities of any series
may be exchanged for Registered Securities (if the
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Securities of such series are issuable in registered form) or Bearer Securities
(if Bearer Securities of such series are issuable in more than one denomination
and such exchanges are permitted by such series) of the same series, of any
authorized denominations and of like tenor 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 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 902, 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 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
(or, if such Coupon is so surrendered with such Bearer Security, such Coupon
shall be returned to the person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, 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.
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Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in certificated
form, a Security in global form representing all or a portion of the Securities
of a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 303, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is
not appointed by the Company within 90 days after the issuer receives such
notice or becomes aware of such ineligibility, the Company's election pursuant
to Section 301(20) shall no longer be effective with respect to the Securities
of such series and the Company shall execute, and the Trustee, upon receipt of
a Company Order for the authentication and delivery of certificated Securities
of such series of like tenor, shall authenticate and deliver Securities of such
series in certificated form in an aggregate principal amount equal to the
principal amount of the Security or Securities in global form representing such
series in exchange for such Security or Securities in global form.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more
global Securities shall no longer be represented by such global Security or
Securities. In such event the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of certificated
Securities of such series of like tenor, shall authenticate and deliver,
Securities of such series in certificated from and in an aggregate principal
amount equal to the principal amount of the Security or Securities in global
form representing such series in exchange for such Security or Securities in
global form.
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If specified by the Company pursuant to Section 301 with
respect to a series of Securities, the Depositary for such series of Securities
may surrender a global Security of such series in exchange in whole or in part
for Securities of such series in certificated form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service
charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities of the same series of like tenor,
of any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the global Security; and
(ii) to such Depositary a new global Security of like
tenor in a denomination equal to the difference, if any, between the
principal amount of the surrendered global Security and the aggregate
principal amount of certificated Securities delivered to Holders
thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company shall execute and the Trustee shall authenticate and
deliver Securities in certificated from in authorized denominations.
Upon the exchange of a global Security for Securities in
certificated form, such global Security shall be cancelled by the Trustee.
Unless expressly provided with respect to the Securities of any series that
such Security may be exchanged for Bearer Securities, Securities issued in
exchange for a Book-Entry Security pursuant to this Section shall be registered
in such names and in such authorized denominations as the Depositary for such
Book-Entry Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Persons in whose names such Securities are so
registered.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
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All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 806 or 907 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series for a period of 15 days before
the selection of any Securities of that series for redemption, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any 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 that series and like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
with Coupons corresponding to the Coupons, if any, appertaining to the
surrendered Security of the same series and of like tenor and principal amount
and bearing a number not contemporaneously
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outstanding with Coupons corresponding to the Coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or Security with a destroyed, lost or stolen Coupon and (ii) such
Security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security or Coupon has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneous outstanding with Coupons
corresponding to the Coupons, if any, appertaining to the destroyed, lost or
stolen Security.
In case any such mutilated, destroyed, lost or stolen Security
or Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or Coupon, pay such Security
or Coupon; provided, however, that payment of principal of and any premium or
interest on Bearer Securities shall, except as otherwise provided in Section
902, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its Guarantee and
Coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost
or stolen Security, or in exchange for a Security to which a destroyed, lost or
stolen Coupon appertains, shall constitute an original additional contractual
obligation of the Company and Guarantor, whether or not the destroyed, lost or
stolen Security and its Coupons, if any, or the destroyed, lost
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or stolen Coupon, shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series and their Guarantees and Coupons,
if any, duly issued hereunder.
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 Securities
or Coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301,
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 Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
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 Holder on the relevant Regular Record Date by virtue of 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 equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements
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satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of 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 so
mailed, such Defaulted Interest shall be paid to the Persons
in whose names the 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).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such 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.
At the option of the Company, interest on Registered
Securities of any series that bear interest may be paid (i) by mailing a check
to the address of the person entitled thereto as such address shall appear in
the Security Register for (ii) by wire transfer to an account maintained by the
person entitled thereto as specified in the applicable Security Register.
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Notwithstanding the above, except as otherwise specified with
respect to a series of Securities in accordance with the provisions of Section
301, a Holder of $10,000,000 or more in aggregate principal amount of
Securities of the same series having the same Interest Payment Date shall be
entitled to receive payments of interest by wire transfer of immediately
available funds if appropriate wire transfer instructions have been received by
the Trustee on or before the Regular Record Date immediately preceding the
applicable Interest Payment Date.
Subject to the foregoing provisions of this Section, each
Security or Coupon, if any, delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security or Coupon, if
any, shall carry the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security or Coupon.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Guarantor, the Trustee and any agent
of the Company or 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.
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SECTION 309. Cancellation.
All Securities, Guarantees, and Coupons surrendered for
payment, redemption, registration of transfer or exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other than the
Trustee, 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
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities and Coupons so
delivered shall be promptly cancelled by the Trustee. No Securities or Coupons
shall be authenticated in lieu of or in exchange for any Securities or Coupons
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities and Coupons shall be destroyed by the
Trustee and a certificate evidencing such destruction shall be delivered to the
Company upon request.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect with respect to Securities of any series (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series and replacement of lost, stolen or mutilated Securities of such series
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to such series, when
(1) either
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(A) all Securities of such series
theretofore authenticated and delivered and all
Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series
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) Securities of such series 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 of such series called for redemption and
maturing after the relevant Redemption Date,
surrender of which has been waived as provided in
Section 1006 and (iv) Securities of such series and
Coupons for whose payment money has theretofore been
deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section
903) have been duly paid or delivered to the Trustee
for cancellation; or
(B) all such Securities and Coupons of such
series 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,
and the Company or the Guarantor, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities and Coupons of such series not theretofore
delivered
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to the Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities and Coupons of
such series which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company or the Guarantor has paid or caused
to be paid all other sums payable hereunder by the Company; and
(3) the Company or the Guarantor 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 605 and,
if money 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 903, shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
903, all money deposited with the Trustee pursuant to Sections 401 and 403
shall be held in trust and applied by it, in accordance with the provisions of
the Securities and Coupons, if any, 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
has been deposited with the Trustee.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of Any
Series.
If this Section is specified, as contemplated by Section 301,
to be applicable to Securities and Coupons, if any, of any series, at the
Company's option, either
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(a) the Company and Guarantor will be deemed to have
been Discharged (as defined below) from their respective
obligations with respect to Securities, Guarantees and Coupons,
if any, of such series or
(b) the Company and the Guarantor will cease to be
under any obligation to comply with any term, provision or
condition set forth in (i) Article Seven and Sections 907
through 911 inclusive or (ii) the terms, provisions or
conditions of such series specified pursuant to Section 301
(provided, however, that the Company may not cease to comply
with any obligations as to which it may not be Discharged
pursuant to the definition of "Discharged"),
if, in the case of (a) and (b), with respect to the Securities and Coupons, if
any, of such series on the 91st day after the applicable conditions set forth
below in (x) and either (y) or (z) have been satisfied:
(x)(1) the Company or the Guarantor has paid or
caused to be paid all other sums payable with respect to the
Outstanding Securities and Coupons, if any, of such series (in
addition to any required under (y) or (z)); and
(2) the Company or the Guarantor 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 on all Outstanding Securities and Coupons, if any,
of any such series have been complied with;
(y)(1) the Company or the Guarantor shall have
deposited or caused to be deposited irrevocably with the
Trustee as a trust fund specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of the
Securities and Coupons, if any, of such series (i) an amount
(in such currency or currency unit in which the Outstanding
Securities and Coupons, if any, of such series are payable) or
(ii) U.S.
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Government Obligations (as defined below) or, in the case of
Securities and Coupons, if any, denominated in a Foreign Currency,
foreign Government Securities (as defined below), which through the
payment of interest and principal in respect thereof in accordance
with their terms will provide, not later than the due date of any
payment of principal (including any premium) and interest, if any,
under the Securities and Coupons, if any, of such series, money in an
amount or (iii) a combination of (i) and (ii) sufficient (in the
opinion with respect to (ii) and (iii) of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee) to pay and discharge each
installment of principal of (including any premium), and interest, if
any, on, the Outstanding Securities and Coupons, if any, of such
series on the dates such installments of interest or principal are
due; and
(2) no Event of Default as defined in clause (5) or clause (6) of
Section 501 with respect to the Company (if the Company made such
deposit) or with respect to the Guarantor (if the Guarantor made such
deposit), or event (including such deposit) which with notice or lapse
of time or both would become such an Event of Default, shall have
occurred and be continuing on the date of such deposit or shall have
occurred within 90 days after the date of such deposit; and
(3) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that Holders of the Securities and Coupons,
if any, of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of the Company's exercise of
its option under this Section 403 and will be subject to Federal
income tax in the same amount, in the same manner and at the same
times as would have been the case if such option had not been
exercised;
(z) 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 Securities and Coupons, if any, of such
series.
Any deposits with the Trustee referred to in clause (y)(1) above will
be made under the terms of an escrow trust agreement in form and substance
satisfactory to the Trustee. If any Outstanding Securities and Coupons, if any,
of such series
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are to be redeemed prior to their Stated Maturity, whether pursuant to any
mandatory redemption provisions or in accordance with any mandatory sinking
fund requirement, the applicable escrow trust agreement will provide therefor
and the Company will 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.
"Discharged" means that the Company will be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Securities and coupons, if any, of the series as to which this
Section is specified as applicable as aforesaid and to have satisfied all the
obligations under this Indenture relating to the Securities and Coupons, if
any, of such series (and the Trustee, at the expense of the Company, will
execute proper instruments acknowledging the same), except (A) the rights of
Holders thereof to receive, from the trust fund described in clause (y)(1)
above, payments of the principal of, premium and the interest, if any, on such
Securities and Coupons, if any, when such payments are due, (B) the Company's
obligations with respect to such Securities and Coupons, if any, under Sections
305 and 306 (insofar as applicable to Securities of such series), 402, 902 and
903 (last paragraph only) and the Company's obligations to the Trustee under
Sections 605 and 606 and (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder, will survive such discharge. The Company will
reimburse the trust fund for any loss suffered by it as a result of any tax,
fee or other charge imposed on or assessed against deposited U.S. Government
Obligations or Foreign Government Securities, as the case may be, or any
principal, premium or interest paid on such Obligations, and, subject to the
provisions of Section 605, will indemnify the Trustee against any claims made
against the Trustee in connection with any such loss.
"Foreign Government Securities" as used in Section 403 means,
with respect to Securities and Coupons, if any, of any series that are
denominated in a Foreign Currency, securities that are (i) direct obligations
of the government that issued such currency for the payment of which
obligations its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
of such government (the timely payment of which is unconditionally guaranteed
as a full faith and credit obligation of such
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government) which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation of the United States of America, which, in either
case under clauses (i) or (ii), are not callable or redeemable at the option of
the issuer thereof, and will also include a depository receipt issued by a bank
or trust company as custodian with respect to any such U.S. Government
Obligation or a specified payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligations or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to
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 or 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 Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
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(2) default in the payment of the principal of
(or premium, if any, on) any Security of that series at its Maturity;
or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company or the Guarantor 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 series of Securities other than that series), and
continuance of such default or breach for a period of 60 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 Securities of that
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) the entry by a court having jurisdiction in
the premises of (A) a decree or order for relief in respect of the
Company or the Guarantor 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 or
the Guarantor a bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or the Guarantor under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or the Guarantor 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 60
consecutive days; or
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(6) the commencement by the Company or the
Guarantor 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 or the Guarantor 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 the Guarantor 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 or the Guarantor in furtherance of any such action; or
(7) any other Event of Default provided with
respect to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less that 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that
series) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon such declaration such principal amount (or specified
amount) shall become immediately due and payable.
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At any time after such a declaration of acceleration with
respect to the 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 Securities of that 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 interest on all
Securities of that series,
(B) the principal of (and premium, if
any, on) any Securities of that series which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in
such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate
or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to
Securities of that series, other than the non-payment of the principal
of Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 511.
No such recision shall affect any subsequent default
or impair any right consequent thereon.
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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
interest on any Security or Coupon, if any, 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 Security at the Maturity
thereof, the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities or Coupons, if any, the
whole amount then due and payable on such Securities for principal
(and premium, if any) and interest and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the
rate or rates prescribed therefor in such Securities or Coupons, if
any, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to 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 Securities of
such series 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 Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such
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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, expense,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 505. 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
(or premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment or exchange pursuant to Section 305 if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 605; and
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities 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 Securities for
principal (and premium, if any) and interest, respectively.
SECTION 506. Limitation on Suits.
No Holder of any Security of any series 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 Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall have made
written request to the Trustee to institute
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proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that 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 of
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 507. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall 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 508. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or
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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 509. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities 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 510. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding 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 Securities of such series, provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 511. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect to
such series and its consequences, except a default
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(1) in the payment of the principal of (or
premium, if any) or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof
which under Article Eight cannot be modified or amended without the
consent of the Holder of each Outstanding 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 512. Waiver of Stay or Extension Laws.
The Company and the Guarantor covenant (to the extent that
they may lawfully do so) that they will not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
and the Guarantor (to the extent that they may lawfully do so) hereby expressly
waive all benefit or advantage of any such law and covenant that they will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 513. Judgment Currency.
The following provisions of this Section 513 shall apply to
the extent permissible under applicable law: Judgments in respect of any
obligations of the Company under any Securities or Coupons, if any, of any
series shall be rendered in the currency or currency unit in which such
Securities or Coupons are payable. If for the purpose of obtaining a judgment
in any court with respect to any obligation of the Company hereunder or under
any Security or Coupon, it shall become necessary to convert into any other
currency or currency unit any amount in the currency or currency unit due
hereunder or under such Security or Coupon, then such conversion shall be made
at the Conversion Rate (as
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defined below) as in effect on the date the Company shall make payment to any
person in satisfaction of such judgment. If pursuant to any such judgment,
conversion shall be made on a date other than the date payment is made and
there shall occur a change between such Conversion Rate and the Conversion Rate
as in effect on the date of payment, the Company agrees to pay such additional
amounts (if any) as may be necessary to ensure that the amount paid is the
amount in such other currency or currency unit which, when converted at the
Conversion Rate as in effect on the date of payment or distribution, is the
amount then due hereunder or under such Security or Coupon. Any amount due
from the Company under this Section 513 shall be due as a separate debt and is
not to be affected by or merged into any judgement being obtained for any other
sums due hereunder or in respect of any Security or Coupon so that in any event
the Company's obligations hereunder or under such Security or Coupon will be
effectively maintained as obligations in such currency or currency unit. In no
event, however, shall the Company be required to pay more in the currency or
currency unit due hereunder or under such Security or Coupon at the Conversion
Rate as in effect when payment is made than the amount of currency or currency
unit stated to be due hereunder or under such Security or Coupon.
For purposes of this Section 513, "Conversion Rate" shall mean the
spot rate at which in accordance with normal banking procedures the currency or
currency unit into which an amount due hereunder or under any Security or
Coupon is to be converted could be purchased with the currency or currency unit
due hereunder or under any Security or Coupon, at the option of the Company
from major banks located in New York, London or any other principal market for
such purchased currency or currency unit.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Rights of Trustee.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution,
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certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond debenture, note, 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; 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.
SECTION 602. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 603. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Paying Agent, Security
Registrar or such other agent.
SECTION 604. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 605. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by
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any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided
herein, to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection
with the exercise of performance of any of its powers or
duties hereunder.
SECTION 606. Resignation and Removal; Appointment of Successor.
(a) The Trustee may resign at any time with
respect to the Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 607 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(b) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(c) If at any time:
(1) the Trustee shall fail to comply
with Section 310(b) of the Trust Indenture Act after written
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request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be
eligible under Section 310(a) of the Trust Indenture Act 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 or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed
or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee with respect to all Securities, or (ii) any Holder who has
been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(d) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or more series,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 607. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
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forthwith upon its acceptance of such appointment in accordance with the
applicable requirement of Section 607, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 607, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(e) The Company shall give notice of each
resignation and each removal of the Trustee with respect to the Securities of
any series and each appointment of a successor Trustee with respect to the
Securities of any series in the manner provided in Section 105. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 607. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all 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 the 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 case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more
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series shall execute and deliver an indenture supplemental hereto wherein such
successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(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
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Trustee shall be qualified and eligible under the Trust Indenture Act.
SECTION 608. 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 the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 609. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit by mail to all Holders of Securities as provided in
Trust Indenture Act Section 313(c) a brief report dated as of such May 15 if
required by Trust Indenture Act Section 313(a).
ARTICLE SEVEN
CONSOLIDATION, MERGER OR SALE
SECTION 701. Consolidation, Merger or Sale.
Each of the Company and the Guarantor covenants that it will not merge
or consolidate with any other corporation or sell, lease, transfer or otherwise
dispose of all or substantially all of its assets to any Person, except that
each of the Company and the Guarantor may merge or consolidate, or sell, lease,
transfer or dispose of all or substantially all of its assets, provided
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that (a) the successor Person, if other than the Company or the Guarantor, as
the case may be, shall be organized under the laws of the United States of
America, any State thereof or the District of Columbia and shall assume all of
the obligations of the Company or the Guarantor, as the case may be, under this
Indenture and under the Securities, including all covenants applicable to the
Company or the Guarantor, as the case may be, contained in this Indenture, the
Securities and the Guarantees, as the case may be, and (b) the Company, the
Guarantor or the successor Person, as the case may be, shall not immediately
after such merger or consolidation, or such sale, lease, transfer or other
disposition, be in default under any of such obligations. Any such assumption
of obligations under this Indenture by a successor Person shall be evidenced by
an indenture supplemental hereto, in form acceptable to the Trustee, executed
and delivered by the successor Person to the Trustee. The Trustee may receive
and shall be fully protected in relying upon an Opinion of Counsel and
Officers' Certificate as conclusive evidence that any such supplemental
indenture complies with the conditions and provisions of this Article.
SECTION 702. Successor Corporation Substituted.
Upon any consolidation by the Company or the Guarantor with or merger
by the Company or the Guarantor into any other corporation or any conveyance,
transfer or lease of the properties and assets of the Company or the Guarantor
substantially as an entirety in accordance with Section 701, the successor
corporation formed by such consolidation or into which the Company or the
Guarantor 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 or the Guarantor under this Indenture with the same
effect as if such successor corporation had been named as the Company or the
Guarantor herein, and thereafter, except in the case of a lease, the
predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and the Securities and may be liquidated and dissolved.
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ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 801. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, the Guarantor 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 or the Guarantor and the assumption by any
such successor of the covenants of the Company or the Guarantor herein
and in the Securities; or
(2) to add to the covenants of the Company or the
Guarantor for the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company or the
Guarantor; or
(3) to add any additional Events of Default with
respect to all or any series of Securities; or
(4) to add any additional Guarantor with respect
to all or any series of Securities; or
(5) to add to or change any of the provisions of
this Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable or
not registrable as to principal, and with or without interest coupons
or to provide for uncertificated (commonly known as "book entry")
Securities on terms satisfactory in substance to the Trustee; or
(6) to change or eliminate any of the provisions
of this Indenture provided that any such change or elimination shall
become effective only when there is no
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Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such
provision; or
(7) to secure the Securities or the Guarantees;
(8) to establish the form or terms of Securities
and the Guarantee of any series as permitted by Sections 201 and 301;
or
(9) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 607(b); or
(10) if allowed without penalty under applicable
laws and regulations, to permit payment in the United States of America
(including any of the states and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction or principal, premium, if any, or interest, if any, on
Bearer Securities or Coupons, if any; or
(11) to cure any ambiguity, to correct or
supplement any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture, provided such
action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
SECTION 802. Supplemental Indentures with Consent of Holders.
With the consent of (i) the Holders of a majority in principal amount
of the Outstanding Securities, or (ii) in case less than all of the several
series of Securities then outstanding are affected by such addition, change,
elimination or modification, the Holders of not less than a majority in
principal amount of each series so affected, by Act of said Holders delivered
to the Company, the Guarantor and the Trustee,
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the Company and the Guarantor, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no supplemental indenture shall, with the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal
of, or any installment of principal of or interest on, any Security,
or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, 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 the coin or
currency in which, any Security or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of
Outstanding Securities as a whole or reduce the percentage in
principal amount of the Outstanding 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
(3) change any obligation of the Company to
maintain an office or agency in the places and for the purposes
specified in Section 902, or
(4) modify any of the provisions of this Section
802, Section 511, or Section 912, except to increase any such
percentage or to provide with respect to any particular series the
right to condition the effectiveness of any supplemental indenture as
to that series on the consent of the Holders of a specified percentage
of the aggregate
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principal amount of Outstanding Securities of such series (which
provision may be made pursuant to Section 301 without the consent of
any Holder) or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding 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, or the deletion of
this proviso, in accordance with the requirements of Sections 607(b)
and 801(8).
For the purposes of this Section 802, if the Securities of any
series are issuable upon the exercise of warrants, any holder of an unexercised
and unexpired warrant with respect to such series shall not be deemed to be a
Holder of Outstanding Securities of such series in the amount issuable upon the
exercise of such warrants.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 803. 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 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
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affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 804. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 805. 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 806. Reference in Securities to Supplemental Indentures.
Securities, including any Coupons, 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 Securities including any
Coupons of any series 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 Securities including any Coupons of such series.
ARTICLE NINE
COVENANTS
SECTION 901. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the
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Securities of that series in accordance with the terms of the Securities and
this Indenture.
The interest on Securities with Coupons appertaining thereto
shall be payable only upon presentation and surrender of the several Coupons
for such interest installments as are evidenced thereby as they severally
mature. The interest, if any, on any temporary Bearer Security shall be paid,
as to any installment of interest evidenced by a Coupon attached thereto only
upon presentation and surrender of such Coupon and, as to other installments of
interest, only upon presentation of such Security for notation thereon of the
payment of such interest.
SECTION 902. Maintenance of Office or Agency.
If Securities of a series are issued as Registered Securities,
the Company will maintain in each Place of Payment for any series of Securities
an office or agency where Securities and Coupons, if any of that series may be
presented or surrendered for payment, where securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain, (A) subject to any laws or regulations
applicable thereto, an office or agency in a Place of Payment for that series
which is located outside the United States, where Securities of that series and
related coupons may be presented and surrendered for payment; provided,
however, that if the Securities of that series are listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited, the
Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Company will
maintain a Paying Agent for the Securities of that series in London, Luxembourg
or any other required city located outside the United States, as the case may
be, so long as the Securities of that series are listed on such exchange, and
(B) subject to any laws or regulations applicable thereto, in a Place of
Payment for that series located outside the United States, where Securities of
that series may be surrendered for exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written
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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 and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
No payment of principal or interest on Bearer Securities shall
be made at any office or agency of the Company in the United States, by check
mailed to any address in the United States, by transfer to an account located
in the United States or upon presentation or surrender in the United States of
a Bearer Security or coupon for payment, even if the payment would be credited
to an account located outside the United States; provided, however, that, if
the Securities of a series are denominated and payable in Dollars, payment of
principal of and any interest on any such Bearer Security shall be made at the
office of the Company's Paying Agent in the Borough of Manhattan, The City of
New York, if (but only if) payment in Dollars of the full amount of such
principal, interest or additional amounts, as the case may be, at all offices
or agencies 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.
The Company may also from time to time designate one or more
other offices or agencies where the Securities (including any Coupons, if any)
of one or more series 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 Securities (including any Coupons, if any) of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 903. Money for 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 Securities, it will, on or
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before each due date of the principal of (and premium, if any) or interest on
any of the Securities of that 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.
The Company will cause each Paying Agent for any series of
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 Securities of
that 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 Securities of that series)
in the making of any payment of principal (and premium, if any) or
interest on the Securities; and
(3) at any time during the continuance of any
such default, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
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 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
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Security of any series and remaining unclaimed for three years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security and Coupon, if
any, shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
Trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, or cause to be mailed to such Holder,
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, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 904. Corporate Existence.
Subject to Article Seven, each of the Company and the
Guarantor 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 neither the Company nor the
Guarantor shall be required to preserve any such right or franchise if the
Board of Directors of the Company or the Guarantor, as the case may be, shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company or the Guarantor, as the case may be, and that
the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 905. Limitation on Liens.
The Company will not, and will not permit any Restricted
Subsidiary to, mortgage, pledge, or create (by merger or otherwise) any lien,
security interest, conditional sale or other title retention agreement or other
similar encumbrances on any of the assets of the Company or any of its
Restricted Subsidiaries except to secure Indebtedness to the Company or a
Wholly-owned Restricted Subsidiary, without making effective
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provision whereby the Securities shall be secured at least equally and ratably
with the Indebtedness thereby secured (for the purpose of providing such equal
and ratable security the principal amount of the Securities shall mean and
shall not be less than that principal amount which could be declared to be due
and payable pursuant to Section 502 on the date of the making of such effective
provision and the extent of such equal and ratable security shall be adjusted,
to the extent permitted by law, as and when said principal amount changes over
time pursuant to Section 502 and any other provision hereof) so long as any
such Indebtedness is so secured, unless immediately thereafter the sum of (i)
the Indebtedness to be secured, (ii) the aggregate principal amount of all
outstanding Secured Indebtedness of the Company and its Restricted Subsidiaries
and (iii) the unsecured Funded Debt of the Restricted Subsidiaries (exclusive
of any unsecured Funded Debt or Secured Indebtedness owed to the Company or a
Wholly-owned Restricted Subsidiary) does not exceed 15% of Consolidated Net
Tangible Assets; provided, however, that nothing contained in this Section
shall prevent, restrict or apply to
(i) the giving, within ninety (90) days after the
acquisition or construction of such property, of any purchase money
lien (including vendor's rights under purchase contracts under an
agreement whereby title is retained for the purpose of securing the
purchase price thereof) on property hereafter acquired or constructed
and not theretofore owned by the Company or such Restricted
Subsidiary, or the acquiring hereafter of property not theretofore
owned by the Company or such Restricted Subsidiary subject to any then
existing Mortgage securing Indebtedness (whether or not assumed),
provided, however, that in each case such Mortgage is limited to such
acquired or constructed property (and accretions thereto and, in the
case of construction, any real property on which such construction
occurs and which was unimproved at the time such construction was
commenced) and that the principal amount of the Indebtedness secured
by such Mortgage, together with all other Indebtedness to Persons
other than the Company or a Restricted Subsidiary secured by Mortgages
on such property, shall not exceed the lesser of the cost of such
acquired or constructed property to the Company or a Restricted
Subsidiary or the fair market value thereof at the time of acquisition
or construction thereof by the
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Company or a Restricted Subsidiary, and refundings or extensions of any
such Mortgage for an amount not exceeding the principal amount of the
Indebtedness so refunded or extended and applying only to the same
property or assets theretofore subject to such Mortgage and fixtures
and building improvements thereon;
(ii) for the purpose of reimbursing itself for the cost of
acquisition and/or the cost of improvement of real property, the
giving by the Company or a Restricted Subsidiary of a Mortgage on such
real property which is the sole security for Indebtedness (x) incurred
within three years after the date of acquisition of such real property
or the date of completion of the first substantial improvements made
thereon by the Company or such Restricted Subsidiary, whichever date
is the later, and (y) the amount of which does not exceed the lesser
of the aggregate cost of such real property and improvements or the
fair market value thereof, and (z) the holder of which shall be
entitled to enforce payment of such Indebtedness solely by resorting
to the security therefor, without any liability on the part of the
Company or such Restricted Subsidiary for any deficiency;
(iii) (1) if made and continuing in the ordinary course
of business, any deposit, pledge or lien as security for the
performance of any contract or undertaking not directly or indirectly
in connection with the borrowing of money or the securing of
Indebtedness, or (2) any deposit, pledge or lien with any
governmental agency required or permitted to qualify the Company or
any Restricted Subsidiary to conduct business, to maintain
self-insurance or to obtain the benefits of any law pertaining to
workmen's compensation, unemployment insurance, old age pensions,
social security or similar matters, or to obtain any stay or discharge
in any legal or administrative proceedings, or (3) any mechanics',
workmen's, repairmen's, materialmen's or carriers' liens or deposits
or pledges to obtain the release thereof, or (4) other liens, deposits
or pledges similar to those referred to in subclauses (2) and (3) of
this clause (iii), if made and continuing in the ordinary course of
business;
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(iv) any Mortgage on assets of the Company or any
Subsidiary existing on the date of this Indenture or any refundings or
extensions thereof for an amount not exceeding the principal amount of
the Indebtedness so refunded or extended and applying only to the same
property or assets theretofore subject thereto and fixtures and
building improvements thereon;
(v) liens for taxes, assessments or governmental charges
or levies if such taxes, assessments, governmental charges or levies
shall not at the time be due and payable, or if the same thereafter
can be paid without penalty, or if the same are being contested in
good faith by appropriate proceedings;
(vi) liens created by or resulting from any litigation or
legal proceeding which at the time is currently being contested in
good faith by appropriate proceedings; liens arising out of judgments
or awards as to which the time for prosecuting an appeal or proceeding
for review has not expired; leases existing on property acquired in
the ordinary course of business and renewals thereof; landlords' liens
on property held under lease; or any sale and leaseback transaction
not otherwise prohibited by this Indenture;
(vii) easements or similar encumbrances, the existence of
which do not impair the use of the property subject thereto for the
purposes for which it is used;
(viii) liens and other security interests of banks on
deposits, compensating balances and similar assets pursuant to local
law or to customary bank note agreements not otherwise involving
secured borrowing;
(ix) any other liens of a nature similar to the foregoing
which are not incurred in connection with the borrowing of money or
the obtaining of advances or credit, and which do not materially limit
the use of the property subject thereto in the operation of the
business of the Company or of any Restricted Subsidiary or impair the
value of such property for the purposes of such business; or
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(x) any Mortgage on assets of a Restricted Subsidiary
existing on the date it became a Subsidiary, or any refundings or
extensions thereof for an amount not exceeding the principal amount of
the Indebtedness so refunded or extended and applying only to the same
property or assets theretofore subject thereto and fixtures and
building improvements thereon.
If the Company shall hereafter be required to secure the
Securities at least equally and ratably with any other Indebtedness pursuant to
this Section, (i) the Company will promptly deliver to the Trustee and
Officers' Certificate stating that such covenant has been complied with and an
Opinion of Counsel stating that in the opinion of such counsel such covenant
has been complied with and that any instruments executed by the Company or any
Restricted subsidiary in the performance of such covenant comply with the
requirements of such covenant, 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 so secured.
SECTION 906. Payment of Taxes and Other Claims.
The Company and the Guarantor 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,
the Guarantor or any Subsidiary or upon the income, profits or property of the
Company, the Guarantor 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, the Guarantor or any Subsidiary; provided, however,
that the Company and the Guarantor 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 907. Maintenance of Properties.
The Company will cause all of the properties owned or leased
by the Company or any Subsidiary and used in the conduct of its business or the
business of any Subsidiary to be
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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 and 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 908. [Reserved]
SECTION 909. [Reserved]
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SECTION 910. Restriction on Permitting Restricted Subsidiaries to Become
Unrestricted Subsidiaries and Unrestricted Subsidiaries to
Become Restricted Subsidiaries.
(a) The Company will not permit any Restricted
Subsidiary to be designated as or otherwise to become an Unrestricted
Subsidiary unless immediately after such Restricted Subsidiary becomes an
Unrestricted Subsidiary, it will not own, directly or indirectly, any capital
stock of any other Restricted Subsidiary or any Mortgage on property of any
other Restricted Subsidiary.
(b) The Company will not permit any Unrestricted
Subsidiary to be designated as a Restricted Subsidiary unless:
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(i) at the time such Unrestricted
Subsidiary becomes a Restricted Subsidiary it has
outstanding no Secured Indebtedness except such
Secured Indebtedness as the Company could permit it
to become liable for immediately after becoming a
Restricted Subsidiary under the provisions of Section
909; and
(ii) the provisions of paragraph (c)
of this Section 910 shall be complied with if such
Unrestricted Subsidiary has previously been a
Restricted Subsidiary.
(c) The Company will not permit any Unrestricted
Subsidiary which has previously been a Restricted Subsidiary to be designated
as a Restricted Subsidiary unless:
(i) the provisions of paragraph (b) of
this Section 910 shall be complied with;
(ii) neither the Company nor any of
its Subsidiaries shall have sold or disposed of any
capital stock of such Unrestricted Subsidiary at any
time after it ceased to be a Restricted Subsidiary,
except to the Company or a Wholly-owned Restricted
Subsidiary or for directors' qualifying shares,
unless the Company or a Wholly-owned Restricted
Subsidiary has acquired the capital stock so disposed
of, or unless such Unrestricted Subsidiary
immediately after becoming a Restricted Subsidiary
would be a Wholly-owned Restricted Subsidiary;
(iii) such Unrestricted Subsidiary
shall not, at any time after it ceased to be a
Restricted Subsidiary, have issued or sold any shares
of its Common Stock which have not thereafter been
reacquired by it or acquired by the Company or a
Wholly-owned Restricted Subsidiary, except such
shares as the Company could have permitted such
Subsidiary to issue or sell under the provisions of
paragraph (a) of Section 909 if such Subsidiary had
been a
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Restricted Subsidiary at all times that it has been a
Subsidiary; and
(iv) such Unrestricted Subsidiary
shall not, at any time after it ceased to be a
Restricted Subsidiary, have merged or consolidated
with any other corporation unless such Unrestricted
Subsidiary immediately after becoming a Restricted
Subsidiary would be a Wholly-owned Restricted
Subsidiary.
(d) 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 with an Officers' Certificate stating that the
provisions of this Section 910 have been complied with in connection with such
designation, and, in case of the designation of a Restricted Subsidiary as an
Unrestricted Subsidiary, setting forth the name of each other subsidiary (if
any) which has become an Unrestricted Subsidiary as a result of such
designation.
SECTION 911. Waiver of Covenant.
The Company and the Guarantor may omit in any particular
instance to comply with any term, provision or condition set forth in Section
904 through 910 inclusive, if before the time for such compliance the Holders
of (i) a majority in principal amount of the Outstanding Securities or (ii) in
case less than all of the several series of Securities then Outstanding are
affected by the omission, at least a majority in principal amount of the
Outstanding securities of each series so affected shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the Guarantor and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
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SECTION 912. Statements as to Compliance.
The Company or the Guarantor will deliver to the Trustee,
within 120 days after the end of each fiscal year a brief certificate from the
principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the compliance by the Company
and the Guarantor with all conditions and covenants under this Indenture. For
purposes of this Section 912, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
ARTICLE TEN
REDEMPTION OF SECURITIES
SECTION 1001. Applicability of Article.
Securities (including Coupons, if any) 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 Securities of any series) in accordance with this Article.
SECTION 1002. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
(including Coupons, if any) shall be evidenced by a Board Resolution. In case
of any redemption at the election of the Company of all or less than all of the
Securities (including Coupons, if any) of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed. In the case of any redemption of Securities (including
Coupons, if any) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities and Coupons, if any, or elsewhere in
this Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
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SECTION 1003. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities (including Coupons, if any) of
any series with the same terms are to be redeemed, the particular Securities
(including Coupons, if any) to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities (including Coupons, if any) of such series not previously called for
redemption, by lot or by such other 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 Securities (including
Coupons, if any) of that series or any integral multiple thereof) of the
principal amount of Securities (including Coupons, if any) of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series.
The Trustee shall promptly notify the Company in writing of
the Securities (including Coupons, if any) selected for redemption and, in the
case of any 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 Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which have been
or is to be redeemed.
SECTION 1004. Notice of Redemption.
Notice of redemption shall be given not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, as provided in Section 105.
Each such notice of redemption shall specify the Redemption
Date, the Redemption Price, the Place or Places of Payment, that the Securities
of such series are being redeemed at the option of the Company pursuant to
provisions contained in the terms of the Securities of such series or in a
supplemental indenture establishing such series, if such be the case, together
with a brief statement of the facts permitting such redemption, that payment
will be made upon presentation and surrender of the applicable Securities, that
all Coupons, if any, maturing
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subsequent to the date fixed for redemption shall be void, that any interest
accrued to the Redemption Date will be paid as specified in said notice, and
that on and after said Redemption Date any interest thereon or, in case of
partial redemptions, on the portions thereof to be redeemed, will cease to
accrue. If less than all the Securities of any series are to be redeemed the
notice of redemption shall specify the numbers of the Securities of such series
to be redeemed, and, if only Bearer Securities of any series are to be
redeemed, and if such Bearer Securities may be exchanged for Registered
Securities, the last date on which exchanges of Bearer Securities for
Registered Securities not subject to redemption may be made. In case any
Security of any series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and
shall state that on and after the Redemption Date, upon surrender of such
Security and any Coupons appertaining thereto, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof and
with appropriate Coupons will be issued, or, in the case of registered
Securities providing appropriate space for such notation, at the option of the
Holders, the Trustee, in lieu of delivering a new Security or Securities as
aforesaid, may make a notation on such Security of the payment of the redeemed
portion thereof.
Notice of redemption of Securities and Coupons, if any, 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 1005. Deposit of Redemption Price.
On or before (but in the case of payments to be made at a
Place of Payment outside of the United States, its territories, possessions and
areas subject to its jurisdiction, at least one New York business day before)
any Redemption Date, the Company shall deposit in immediately available funds
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 903) an
amount of money in the relevant currency (or a sufficient number of currency
units, as the case may 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 Securities which are to be redeemed on that date.
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<PAGE> 92
SECTION 1006. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Except as
provided in the next succeeding paragraph, upon surrender of any such Security
(including Coupons, if any) for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that installments
of interest on Registered Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more predecessor Securities, registered as such at the close of business 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; 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
pursuant to Section 801(9).
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
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<PAGE> 93
SECTION 1007. Securities Redeemed in Part.
Any Security (including Coupons, if any) which is to be
redeemed only in part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security
or Securities (with appropriate Coupons, if any, attached) of the same series,
of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security (including Coupons, if any) so surrendered.
ARTICLE ELEVEN
SINKING FUNDS
SECTION 1101. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of 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 Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1102. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
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SECTION 1102. Satisfaction of Sinking Fund Payments With Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
Series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1103. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver 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 and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1102 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 nor more than 60 days before each such
sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1003 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 1004. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1006 and 1007.
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ARTICLE TWELVE
GUARANTEE OF SECURITIES
SECTION 1201. Unconditional Guarantee.
For good and valuable consideration receipt of which is hereby
acknowledged, and intending to be legally bound hereby, the Guarantor, hereby
unconditionally guarantees to each Holder of a Security of any series,
authenticated and delivered by the Trustee, upon which this guarantee (the
"Guarantee") is endorsed, the due and punctual payment of the principal of,
sinking fund payment, if any, premium, if any, and interest on, and any
Redemption Price with respect to such Security, when and as the same shall
become due and payable, whether at maturity, upon acceleration or redemption or
otherwise, in accordance with the terms of such Security and of this Indenture.
The Guarantor agrees to determine, at least one business day prior to
the date upon which a payment of principal of, sinking fund payment, if any,
premium, if any, and interest on said Security, and any Redemption Price with
respect to such Security, is due and payable, whether the Company has available
the funds to make such payment as the same shall become due and payable. In
case of the failure of the Company to punctually pay any such principal of,
sinking fund payment, if any, premium, if any, and interest on, and any
Redemption Price with respect to, such Security, the Guarantor hereby agrees to
cause any such payment to be made punctually when and as the same shall become
due and payable, whether at maturity, upon acceleration or redemption, or
otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal and not merely as surety, and shall be unconditional, irrevocable,
and absolute, irrespective of, and shall be unaffected by, any invalidity,
irregularity, or unenforceability of such Security or such Indenture, any
failure to enforce the provisions of such Security or such Indenture, or any
waiver, modification, consent or indulgence granted to the Company with respect
thereto (unless the same shall also be provided the Guarantor), by the Holder
of such Security or the Trustee with respect to any provisions thereof, the
recovery of any judgment against the Company or any action to enforce the same,
or any other
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circumstance which might otherwise constitute a legal or equitable discharge or
defense of a surety or of a guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to any
such Security or the indebtedness evidenced thereby, and all demands whatsoever
and covenants that this Guarantee will not be discharged except by payment in
full of the principal, premium, if any, and interest on, and any Redemption
Price with respect to, the Securities and the complete performance of the
obligations contained in such Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of any
Security against the Company in respect of all amounts paid to such Holder by
the Guarantor pursuant to the provisions of this Guarantee; provided, however,
that the Guarantor shall not, without the consent of the holders of all of the
Securities then outstanding, be entitled to enforce or to receive any payments
arising out of or based upon such right of subrogation until the principal of,
premium, if any, and interest on, and any Redemption Price with respect to all
Securities shall have been paid in full or payment thereof shall have been
provided for in accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if
following any payment of principal or interest by the Company on the Securities
to the holders of the Securities it is determined by a final decision of a
court of competent jurisdiction that such payment shall be avoided by a trustee
in bankruptcy (including any debtor-in-possession) as a preference under 11
U.S.C. Section 547 and such payment is paid by such holder to such trustee in
bankruptcy, then and to the extent of such repayment, the obligations of the
Guarantor hereunder shall remain in full force and effect.
The Guarantee set forth in this Article shall not be valid or become
obligatory for any purpose with respect to a Security unless and until the
certificate of authentication on such Security shall have been signed by the
Trustee.
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<PAGE> 97
The Guarantee set forth in this Article is intended for the benefit of
the Trustee and each of the Holders of Securities and shall be enforceable by
such Trustee and such Holders.
The Guarantee set forth in this Article shall be governed by the laws
of the State of New York.
SECTION 1202. Execution of Guarantee.
To evidence its Guarantee to the Holders specified in Section 1201,
the Guarantor hereby agrees to execute the Guarantee in substantially the form
above recited, to be endorsed on each Security authenticated and delivered by
the Trustee. Each such Guarantee shall be executed on behalf of the Guarantor
in a manner identical to that prescribed in Section 303 of the Indenture
relating to the execution, authentication, delivery and dating of such
Securities prior to the authentication of the Security on which it is endorsed,
and the delivery of such Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of such Guarantee on behalf of
the Guarantor.
The Guarantee set forth in this Article shall not be valid or become
obligatory for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by the Trustee.
SECTION 1203. Assumption by Guarantor.
The Guarantor shall assume all of the rights and
obligations of the Company hereunder with respect to a series of Securities and
under the Securities of such series if, upon a default by the Company in the
due and punctual payment of the principal of, sinking fund payment, if any,
premium, if any, and
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<PAGE> 98
interest on such Securities, and any Redemption Price with respect to such
Securities, the Guarantor is prevented by any court order or judicial
proceeding from fulfilling its obligations under Section 1201 with respect to
such series of Securities. Such assumption shall result in the Securities of
such series becoming the direct obligations of the Guarantor and shall be
effected without the consent of the Holders of the Securities of any series.
Upon such an assumption, the Company shall be released from all of its
liabilities hereunder and under such Securities as obligor on the Securities of
such series.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE> 99
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.
THE MAY DEPARTMENT STORES
COMPANY, a Delaware Corporation
[SEAL] By /s/ Richard A. Brickson
-----------------------
Attest: /s/ Kathleen M. Rowley Richard A. Brickson
---------------------- Secretary
Kathleen M. Rowley
Assistant Secretary THE MAY DEPARTMENT STORES
COMPANY, a New York Corporation
[SEAL] By /s/ Jan R. Kniffen
---------------------
Jan R. Kniffen
Attest: /s/ Kathleen M. Rowley Treasurer
----------------------
Kathleen M. Rowley
Assistant Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, Trustee
[SEAL] By /s/ Richard D. Manella
------------------------
Attest: /s/ Leland Hansen Richard D. Manella
---------------------- Vice President
Leland Hansen
Assistant Vice President
91
<PAGE> 100
STATE OF Illinois )
: ss.:
COUNTY OF Cook )
On the 17th day of June, 1996, before me personally came Richard D.
Manella, to me known, who, being by me duly sworn, did depose and say that he
is a Vice President of The First National Bank of Chicago, the national banking
association described in and which executed the foregoing instrument; that he
knows the seal of said national banking association; that the seal affixed to
said instrument is such seal; that it was so affixed by authority of the Board
of Directors of said national banking association, and that he signed his name
thereto by like authority.
/s/ Mietka T. Collins
-------------------------------
Mietka T. Collins
Notary Public
[Notarial Seal]
92
<PAGE> 101
STATE OF MISSOURI )
: ss.:
CITY OF ST. LOUIS )
On this 17th day of June, 1996, before me personally appeared Jan R.
Kniffen, who acknowledged himself to be the Treasurer of THE MAY DEPARTMENT
STORES COMPANY, a New York corporation, and that he, as such Treasurer, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained, by signing the name of the corporation by himself as such Treasurer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Tina R. Toarmina
----------------------------
Tina R. Toarmina
Notary Public
[Notarial Seal]
93
<PAGE> 102
STATE OF MISSOURI )
: ss.:
CITY OF ST. LOUIS )
On this 17th day of June, 1996, before me personally appeared Richard
A. Brickson, who acknowledged himself to be the Secretary of THE MAY DEPARTMENT
STORES COMPANY, a Delaware corporation, and that he, as such Secretary, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained, by signing the name of the corporation by himself as such Secretary.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Tina R. Toarmina
---------------------------
Tina R. Toarmina
Notary Public
[Notarial Seal]
94
<PAGE> 1
EXHIBIT 5
June 17, 1996
The May Department Stores Company,
a Delaware corporation
The May Department Stores Company,
a New York corporation
611 Olive Street
St. Louis, Missouri 63101
Ladies and Gentlemen:
We have acted as special counsel to The May Department Stores
Company, a New York corporation (the "Company"), and The May Department Stores
Company, a Delaware corporation (the "Guarantor"), in connection with the
preparation of the Registration Statement on Form S-3 (the "Registration
Statement") to be filed with the Securities and Exchange Commission (the
"Commission"). The Company is a wholly owned subsidiary of the Guarantor.
The Registration Statement relates to the guarantee by the Guarantor (the
"Guarantee") of up to $800,000,000 aggregate principal amount (or the
equivalent thereof, based on the applicable exchange rate at the time of sale,
in one or more foreign currencies, currency units or composite currencies as
shall be designated by the Company) of the Company's debt securities (the
"Securities") to be issued and sold from time to time, pursuant to Rule 415 of
the General Rules and Regulations promulgated under the Securities Act of 1933,
as amended (the "Act"). Pursuant to Rule 429 under the Act, the prospectus
included in the Registration Statement also relates to $800,000,000 aggregate
principal amount of debt securities registered under Registration Statement
Nos. 33-62075 and 33-55255 (the "Prior Registration Statements"). The
Registration Statement also constitutes Post-Effective Amendment No. 1 to each
of the Prior Registration Statements. Such Securities, including any
Guarantee, will be issued under the Indenture, dated as of June 17, 1996, among
the Company, the Guarantor and The First National Bank of Chicago, as
<PAGE> 2
The May Department Stores Company,
a Delaware corporation
The May Department Stores Company,
a New York corporation
June 17, 1996
Page 2
trustee (the "Indenture"). We do not express any opinion herein as to the
issuance of the Securities and the Guarantee under any indenture other than the
Indenture.
This opinion is delivered in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Act.
We have examined the Registration Statement to be filed with
the Commission on June 18, 1996 under the Act; the Prior Registration
Statements; the form of the Indenture filed as an exhibit to the Registration
Statement; the form of underwriting agreement (the "Underwriting Agreement")
proposed to be entered into by the Company and the representatives of the
several underwriters to be named therein (the "Underwriters"), filed as an
exhibit to the Registration Statement; the form of distribution agreement (the
"Distribution Agreement") proposed to be entered into by the Company and the
agents to be named therein (the "Agents"), filed as an exhibit to the
Registration Statement; the Restated Certificate of Incorporation of the Company
as in effect on the date hereof; the Amended and Restated Certificate of
Incorporation of the Guarantor as in effect on the date hereof; the respective
By-laws of the Company and the Guarantor as in effect on the date hereof; the
order of the Commission dated September 6, 1995 declaring Registration Statement
No. 33-62075 effective under the Act; the order of the Commission dated October
7, 1994 declaring Registration Statement No. 33-55255 effective under the Act;
and resolutions adopted by the respective Boards of Directors of the Company and
the Guarantor or the respective Executive Committees thereof authorizing the
Indenture, the form of Underwriting Agreement, the form of Distribution
Agreement, the issuance and sale of the Securities, the Guarantee and the proper
officers of the Company to determine the final form and terms of the Securities
and the Guarantee. We have also examined originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company and the
Guarantor and such agreements, certificates of public officials, certificates of
officers or other representatives of the
<PAGE> 3
The May Department Stores Company,
a Delaware corporation
The May Department Stores Company,
a New York corporation
June 17, 1996
Page 3
Company, the Guarantor and others, and such other documents, certificates and
records as we have deemed necessary or appropriate as a basis for the opinions
set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed or to be executed by parties other than the
Company and the Guarantor, we have assumed that such parties had the power,
corporate or other, to enter into and perform all obligations thereunder and
have also assumed the due authorization by all requisite action, corporate or
other, and execution and delivery by such parties of such documents and the
validity and binding effect thereof. As to any facts material to the opinions
expressed herein that were not independently established or verified, we have
relied upon statements and representations of officers and other
representatives of the Company, the Guarantor and others.
Members of our firm are admitted to the Bar in the States of
New York and Delaware, and we express no opinion as to the laws of any other
jurisdiction other than the laws of the United States of America to the extent
referred to specifically herein. The Securities and the Guarantee may be
issued from time to time on a delayed or continuous basis, and this opinion is
limited to the laws, including the rules and regulations, as in effect on the
date hereof.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Indenture has been duly authorized, executed and
delivered by the Company and the Guarantor and is a valid and binding
agreement, enforceable against the Company and the Guarantor in accordance with
its terms, except to the extent that enforcement thereof may be
<PAGE> 4
The May Department Stores Company,
a Delaware corporation
The May Department Stores Company,
a New York corporation
June 17, 1996
Page 4
limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating to
creditors' rights generally and (b) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity), and
except that enforcement thereof may also be limited by (x) requirements that a
claim with respect to any Securities denominated other than in United States
dollars (or a foreign currency or foreign currency unit judgment in respect of
such claim) be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (y) governmental
authority to limit, delay or prohibit the making of payments in foreign
currency or currency units or payments outside the United States.
2. With respect to any series of Securities (the
"Offered Securities") and the Guarantee, when (i) the Registration Statement,
as finally amended (including all necessary post-effective amendments), has
become effective, (ii) an appropriate Prospectus Supplement with respect to the
Offered Securities and the Guarantee has been prepared, delivered and filed in
compliance with the Act and the applicable rules and regulations thereunder,
(iii) the appropriate officers of the Company and the Guarantor have taken all
necessary corporate action to determine and approve the issuance and terms of
the Securities and the Guarantee, (iv) the Underwriting Agreement with respect
to the Offered Securities has been duly authorized, executed and delivered by
the Company and the other parties thereto, if the Offered Securities are to be
sold pursuant to a firm commitment underwritten offering, (v) the Distribution
Agreement with respect to the Offered Securities has been duly authorized,
executed and delivered by the Company and the other parties thereto, if the
Offered Securities are to be sold pursuant to the Distribution Agreement, (vi)
the terms of the Offered Securities and the Guarantee have been duly
established in conformity with the Indenture and do not violate any applicable
law, the Restated Certificate of Incorporation or By-laws of the Company, the
Amended and Restated Certificate of Incorporation or By-laws of the
<PAGE> 5
The May Department Stores Company,
a Delaware corporation
The May Department Stores Company,
a New York corporation
June 17, 1996
Page 5
Guarantor or result in a default under or breach of any agreement or instrument
binding upon the Company or the Guarantor and comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company or the Guarantor and (vii) the Offered Securities and the Guarantee
have been duly executed and authenticated in accordance with the terms of the
Indenture and delivered by the proper officers of the Company and the Guarantor
to the Underwriters or the purchasers thereof against payment therefor in
accordance with the terms of the Underwriting Agreement or the Distribution
Agreement, as the case may be, the Offered Securities and the Guarantee will be
valid and binding obligations of the Company and the Guarantor, respectively,
entitled to the benefit of the Indenture and enforceable against the Company
and the Guarantor, respectively, in accordance with their terms, except to the
extent that enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity), and except that enforcement thereof may also
be limited by (x) requirements that a claim with respect to any Offered
Securities denominated other than in United States dollars (or a foreign
currency or foreign currency unit judgment in respect of such claim) be
converted into United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (y) governmental authority to limit,
delay or prohibit the making of payments in foreign currency or currency units
or payments outside the United States.
We hereby consent to the use of our name in the Registration Statement
under the caption "Validity of the Offered Debt Securities" and to the filing
of this opinion as an exhibit to the Registration Statement. In giving such
consent, we do not thereby admit that we come within the category of persons
whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission thereunder.
Very truly yours,
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 26, 1996,
incorporated by reference in The May Department Stores Company's Form 10-K for
the year ended February 3, 1996, and to all references to our firm included in
this registration statement.
ARTHUR ANDERSEN LLP
St. Louis, Missouri
June 17, 1996
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
The undersigned appoints Jerome T. Loeb, Louis J. Garr, Jr. and Richard
A. Brickson, and each or any one of them acting alone, as his true and lawful
attorney-in-fact and agent, with full power of substitution for him and in his
name, place and stead, in any and all capacities, to sign a registration
statement on Form S-3 and to sign any and all amendments thereto or
post-effective amendments thereto with respect to debt securities of The May
Department Stores Company, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute may lawfully do or
cause to be done by virtue hereof.
/s/ Eugene S. Kahn
-----------------------
Eugene S. Kahn
Date: June 6, 1996
<PAGE> 2
POWER OF ATTORNEY
The undersigned appoints Jerome T. Loeb, Louis J. Garr, Jr. and Richard A.
Brickson, and each or any one of them acting alone, as his true and lawful
attorney-in-fact and agent, with full power of substitution for him and in his
name, place and stead, in any and all capacities, to sign a registration
statement on Form S-3 and to sign any and all amendments thereto or
post-effective amendments thereto with respect to debt securities of The May
Department Stores Company, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute may lawfully do or
cause to be done by virtue hereof.
/s/ Anthony J. Torcasio
--------------------------------
Anthony J. Torcasio
Date: June 7, 1996
<PAGE> 3
POWER OF ATTORNEY
The undersigned appoints Jerome T. Loeb, Louis J. Garr, Jr. and Richard A.
Brickson, and each or any one of them acting alone, as his true and lawful
attorney-in-fact and agent, with full power of substitution for him and in his
name, place and stead, in any and all capacities, to sign a registration
statement on Form S-3 and to sign any and all amendments thereto or
post-effective amendments thereto with respect to debt securities of The May
Department Stores Company, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute may lawfully do or
cause to be done by virtue hereof.
/s/ Russell E. Palmer
------------------------
Russell E. Palmer
Date: June 6, 1996
<PAGE> 4
POWER OF ATTORNEY
The undersigned appoints Jerome T. Loeb, Louis J. Garr, Jr. and Richard A.
Brickson, and each or any one of them acting alone, as his true and lawful
attorney-in-fact and agent, with full power of substitution for him and in his
name, place and stead, in any and all capacities, to sign a registration
statement on Form S-3 and to sign any and all amendments thereto or
post-effective amendments thereto with respect to debt securities of The May
Department Stores Company, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute may lawfully do or
cause to be done by virtue hereof.
/s/ Edward H. Meyer
---------------------------
Edward H. Meyer
Date: June 6, 1996
<PAGE> 5
POWER OF ATTORNEY
The undersigned appoints Jerome T. Loeb, Louis J. Garr, Jr. and Richard A.
Brickson, and each or any one of them acting alone, as his true and lawful
attorney-in-fact and agent, with full power of substitution for him and in his
name, place and stead, in any and all capacities, to sign a registration
statement on Form S-3 and to sign any and all amendments thereto or
post-effective amendments thereto with respect to debt securities of The May
Department Stores Company, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute may lawfully do or
cause to be done by virtue hereof.
/s/ Michael R. Quinlan
--------------------------
Michael R. Quinlan
Date: June 12, 1996
<PAGE> 6
POWER OF ATTORNEY
The undersigned appoints Jerome T. Loeb, Louis J. Garr, Jr. and Richard A.
Brickson, and each or any one of them acting alone, as his true and lawful
attorney-in-fact and agent, with full power of substitution for him and in his
name, place and stead, in any and all capacities, to sign a registration
statement on Form S-3 and to sign any and all amendments thereto or
post-effective amendments thereto with respect to debt securities of The May
Department Stores Company, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute may lawfully do or
cause to be done by virtue hereof.
/s/ William P. Stiritz
-------------------------------
William P. Stiritz
Date: June 6, 1996
<PAGE> 7
POWER OF ATTORNEY
The undersigned appoints Jerome T. Loeb, Louis J. Garr, Jr. and Richard A.
Brickson, and each or any one of them acting alone, as his true and lawful
attorney-in-fact and agent, with full power of substitution for him and in his
name, place and stead, in any and all capacities, to sign a registration
statement on Form S-3 and to sign any and all amendments thereto or
post-effective amendments thereto with respect to debt securities of The May
Department Stores Company, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute may lawfully do or
cause to be done by virtue hereof.
/s/ Robert D. Storey
----------------------------
Robert D. Storey
Date: June 9, 1996
<PAGE> 8
POWER OF ATTORNEY
The undersigned appoints Jerome T. Loeb, Louis J. Garr, Jr. and Richard A.
Brickson, and each or any one of them acting alone, as his true and lawful
attorney-in-fact and agent, with full power of substitution for him and in his
name, place and stead, in any and all capacities, to sign a registration
statement on Form S-3 and to sign any and all amendments thereto or
post-effective amendments thereto with respect to debt securities of The May
Department Stores Company, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute may lawfully do or
cause to be done by virtue hereof.
/s/ Murray. L. Weidenbaum
---------------------------------
Murray L. Weidenbaum
Date: June 6, 1996
<PAGE> 9
POWER OF ATTORNEY
The undersigned appoints Jerome T. Loeb, Louis J. Garr, Jr. and Richard A.
Brickson, and each or any one of them acting alone, as his true and lawful
attorney-in-fact and agent, with full power of substitution for him and in his
name, place and stead, in any and all capacities, to sign a registration
statement on Form S-3 and to sign any and all amendments thereto or
post-effective amendments thereto with respect to debt securities of The May
Department Stores Company, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute may lawfully do or
cause to be done by virtue hereof.
/s/ David C. Farrell
----------------------------
David C. Farrell
Date: June 6, 1996
<PAGE> 10
POWER OF ATTORNEY
The undersigned appoints Jerome T. Loeb, Louis J. Garr, Jr. and Richard A.
Brickson, and each or any one of them acting alone, as his true and lawful
attorney-in-fact and agent, with full power of substitution for him and in his
name, place and stead, in any and all capacities, to sign a registration
statement on Form S-3 and to sign any and all amendments thereto or
post-effective amendments thereto with respect to debt securities of The May
Department Stores Company, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute may lawfully do or
cause to be done by virtue hereof.
/s/ Jerome T. Loeb
-------------------------
Jerome T. Loeb
Date: June 6, 1996
<PAGE> 11
POWER OF ATTORNEY
The undersigned appoints Jerome T. Loeb, Louis J. Garr, Jr. and Richard A.
Brickson, and each or any one of them acting alone, as his true and lawful
attorney-in-fact and agent, with full power of substitution for him and in his
name, place and stead, in any and all capacities, to sign a registration
statement on Form S-3 and to sign any and all amendments thereto or
post-effective amendments thereto with respect to debt securities of The May
Department Stores Company, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute may lawfully do or
cause to be done by virtue hereof.
/s/ Richard L. Battram
-----------------------------
Richard L. Battram
Date: June 6, 1996
<PAGE> 12
POWER OF ATTORNEY
The undersigned appoints Jerome T. Loeb, Louis J. Garr, Jr. and Richard A.
Brickson, and each or any one of them acting alone, as his true and lawful
attorney-in-fact and agent, with full power of substitution for him and in his
name, place and stead, in any and all capacities, to sign a registration
statement on Form S-3 and to sign any and all amendments thereto or
post-effective amendments thereto with respect to debt securities of The May
Department Stores Company, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute may lawfully do or
cause to be done by virtue hereof.
/s/ John L. Dunham
-------------------------
John L. Dunham
Date: June 4, 1996
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
________________________
THE MAY DEPARTMENT STORES COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
NEW YORK 43-0398035
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
611 OLIVE STREET
ST. LOUIS, MISSOURI 63101
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
________________________
THE MAY DEPARTMENT STORES COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 43-1742586
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
611 OLIVE STREET
ST. LOUIS, MISSOURI 63101
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE> 3
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 11th day of June, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /S/ RICHARD D. MANELLA
RICHARD D. MANELLA
VICE PRESIDENT
* EXHIBIT 1,2,3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 12 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 26 TO THE REGISTRATION STATEMENT ON FORM S-3 OF THE
CIT GROUP HOLDINGS, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
FEBRUARY 16, 1993 (REGISTRATION NO. 33-58418).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
June 11, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture among The May Department
Stores Company, a New York Corporation, The May Department Stores Company, a
Delaware Corporation, as Guarantor and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /S/ RICHARD D. MANELLA
RICHARD D. MANELLA
VICE PRESIDENT
4
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/96
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-1
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<S> <C> <C> <C> <C>
DOLLAR AMOUNTS IN C400 <-
THOUSANDS RCFD BIL MIL THOU --
----------------- ---- ------------
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) . . . . . 0081 3,047,140 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . . 0071 8,488,390 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A). . . . 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) . . 1773 997,155 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold . . . . . . . . . . . . . . . . . . . . . . . 0276 3,384,301 3.a.
b. Securities purchased under agreements to resell . . . . . . . . 0277 685,531 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 16,884,488 4.a.
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . RCFD 3123 358,448
4.b. c. LESS: Allocated transfer risk reserve . . . . . RCFD 3128 0
4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . 2125 16,526,040 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . . 3545 10,974,841 5.
6. Premises and fixed assets (including capitalized leases) . . . . . 2145 592,581 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . 2150 9,952 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . 2130 42,098 8.
9. Customers' liability to this bank on acceptances outstanding. . . . 2155 564,435 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . 2143 96,463
10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . 2160 1,703,124 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . 2170 47,112,051 12.
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
</TABLE>
5
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago
Call Date: 03/31/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-2
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
Thousands BIL MIL THOU
---------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) . . . . . . . . . . . . . . . . . RCON 2200 14,251,874 13.a.
(1) Noninterest-bearing(1) . . . . . . . . . . . . . . . . . . RCON 6631 5,707,786 13.a.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . RCON 6636 8,544,088 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) . . . . . . . . . . . . . . RCFN 2200 12,839,836 13.b.
(1) Noninterest bearing . . . . . . . . . . . . . . . . . . . RCFN 6631 196,311 13.b.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . RCFN 6636 12,643,525 13.b.(2)
14. Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased . . . . . . . . . . . . . . . . . . . RCFD 0278 2,692,008 14.a.
b. Securities sold under agreements to repurchase . . . . . . . . RCFD 0279 1,165,032 14.b.
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . . RCON 2840 77,000 15.a.
b. Trading Liabilities . . . . . . . . . . . . . . . . . . . . . RCFD 3548 7,103,300 15.b.
16. Other borrowed money:
a. With original maturity of one year or less . . . . . . . . . . RCFD 2332 2,223,560 16.a.
b. With original maturity of more than one year . . . . . . . . CFD 2333 144,665
16.b. 17. Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and outstanding. . . RCFD 2920 564,435 18.
19. Subordinated notes and debentures . . . . . . . . . . . . . RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . RCFD 2930 1,411,087 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . RCFD 2948 44,030,838 21.
22. Limited-Life preferred stock and related surplus . . . . . . RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . . RCFD 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,320,326 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . . . RCFD 3632 559,707
26.a. b. Nunrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 8434 730
26.b.
27. Cumulative foreign currency translation adjustments . . . . RCFD 3284 (408) 27.
28. Total equity capital (sum of items 23 through 27). . . . . . RCFD 3210 3,081,213 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) . . . . . . . . . . . RCFD 3300 47,112,051 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 6724 2 M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
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(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
</TABLE>
6
