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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 26, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
J. C. PENNEY COMPANY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OF INCORPORATION)
13-5583779
(I.R.S. EMPLOYER IDENTIFICATION NO.)
6501 LEGACY DRIVE
PLANO, TEXAS 75024-3698
(214) 431-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
C. R. LOTTER, ESQ.
EXECUTIVE VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
J. C. PENNEY COMPANY, INC.
6501 LEGACY DRIVE, PLANO, TEXAS 75024-3698
(214) 431-1000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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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.
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IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED
PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING
BOX. / /
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE BEING 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/
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<S> <C> <C> <C> <C>
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED UNIT* PRICE* FEE
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Debt Securities and Warrants to
Purchase Debt Securities....... $1,500,000,000** 100%*** $1,500,000,000 $517,242
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</TABLE>
* Estimated solely for the purpose of determining the registration fee.
** In U.S. dollars or the equivalent thereof denominated in foreign currency or
composite currencies such as the European Currency Unit ("ECU").
*** Exclusive of accrued interest, if any.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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*******************************************************************************
* 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. *
*******************************************************************************
SUBJECT TO COMPLETION, DATED APRIL 26, 1994
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PROSPECTUS
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JCPenney
J. C. PENNEY COMPANY, INC.
DEBT SECURITIES
AND
WARRANTS TO PURCHASE DEBT SECURITIES
------------------------
J. C. Penney Company, Inc. ("Company") may offer from time to time in one
or more series up to $1,500,000,000 (or the equivalent thereof denominated in
foreign currency or composite currencies such as the European Currency Unit
("ECU")) aggregate principal amount of its senior debt securities consisting of
unsecured debentures, notes and/or other evidences of indebtedness ("Debt
Securities"), each series of which will be offered on terms to be determined at
the time of sale. The Company from time to time may also offer Debt Securities
with warrants ("Warrants") to purchase Debt Securities (Debt Securities and
Warrants being hereinafter collectively called "Securities"). A Supplement to
this Prospectus ("Prospectus Supplement") will be delivered together with this
Prospectus in respect of any Debt Securities, including any related Warrants,
then being offered and will set forth certain specific terms with respect to
such Securities, which may include, among other items:
- title;
- authorized denominations;
- aggregate principal amount;
- initial public offering price;
- maturity;
- currency or currency unit in which the Debt Securities will be
denominated;
- rate or rates or formula to determine such rate or rates, and time
or times of payment of interest, if any;
- redemption and sinking fund terms, if any;
- exercise prices and expiration dates of any Warrants;
- listing, if any, on a securities exchange;
- underwriter or underwriters, if any, respective amounts to be
purchased by them, their compensation and the resulting net
proceeds to the Company.
Securities may be sold to underwriters for public offering pursuant to
terms of offering fixed at the time of sale. In addition, Securities may be sold
by the Company directly or through agents. 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 SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR AD-
EQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1994
<PAGE> 3
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT IN
CONNECTION WITH ANY OFFERING MADE THEREBY, AND IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR BY ANY UNDERWRITER, DEALER OR AGENT. THIS PROSPECTUS AND THE
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY OF THE SECURITIES OFFERED THEREBY IN ANY JURISDICTION TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER
THE DELIVERY OF THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE
INFORMATION THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE THEREOF OR
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE SUCH DATE.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 ("1934 Act") and in accordance therewith, files reports,
proxy statements and other information with the Securities and Exchange
Commission ("Commission"). Such reports, proxy statements and other information
can be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N. W., Room 1024, Washington, D. C. 20549; and
at the Commission's Regional Offices in Chicago (Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661) and New York (Seven
World Trade Center, 13th Floor, New York, N.Y. 10048). Copies of such material
can also be obtained from the Public Reference Section of the Commission at 450
Fifth Street, N. W., Washington, D. C. 20549 at prescribed rates. Reports, proxy
statements and other information concerning the Company can also be inspected at
the office of The New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005.
This Prospectus constitutes a part of a Registration Statement filed by the
Company with the Commission under the Securities Act of 1933. This Prospectus
omits certain of the information contained in the Registration Statement, and
reference is hereby made to the Registration Statement and to the exhibits
relating thereto for further information with respect to the Company and the
Securities offered pursuant hereto. Any statements contained herein concerning
the provisions of any document are not necessarily complete, and in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company incorporates herein by reference its Annual Report on Form 10-K
for the fiscal year ended January 29, 1994, which incorporates by reference the
J. C. Penney Funding Corporation ("Funding Corporation") Annual Report on Form
10-K for such fiscal year. The aforesaid Report has heretofore been filed by the
Company with the Commission (File No. 1-777) pursuant to applicable provisions
of the 1934 Act.
All reports and any definitive proxy or information statements filed by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act,
subsequent to the date of this Prospectus and prior to the termination of the
offering of the Securities, shall be deemed to be incorporated in this
Prospectus by reference and to be a part hereof from the date of the filing of
such documents.
THE COMPANY WILL PROVIDE, WITHOUT CHARGE, TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS WHICH HAVE BEEN OR MAY BE INCORPORATED
HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO SUCH DOCUMENTS). WRITTEN REQUESTS
SHOULD BE DIRECTED TO: J. C. PENNEY COMPANY, INC., PUBLIC INFORMATION, P. O. BOX
10001, DALLAS, TEXAS 75301-2304. TELEPHONE REQUESTS SHOULD BE DIRECTED TO (214)
431-1488.
2
<PAGE> 4
THE COMPANY
The Company is a major retailer, with department stores in all 50 states
and Puerto Rico. The dominant portion of the Company's business consists of
providing merchandise and services to consumers through department stores that
include catalog departments. The Company markets predominantly family apparel,
shoes, jewelry, accessories and home furnishings. The Company finances a portion
of its operations through Funding Corporation, a wholly-owned consolidated
subsidiary.
The Company was founded by James Cash Penney in 1902 and incorporated in
Delaware in 1924. Its principal executive offices are located at 6501 Legacy
Drive, Plano, Texas 75024-3698, and its telephone number is (214) 431-1000. As
used in this Prospectus, except as otherwise indicated by the context, the term
"Company" means J. C. Penney Company, Inc. and its consolidated subsidiaries.
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale of the
Securities will be used for general corporate purposes, which may include
working capital, capital expenditures, repayment of borrowings and investments.
Unless otherwise specified in the Prospectus Supplement accompanying this
Prospectus, specific allocations of the proceeds will not have been made at the
date of the Prospectus Supplement. Pending any specific application, the net
proceeds may be initially invested in short term marketable securities or
applied to the reduction of short term indebtedness.
The Company or its subsidiaries may from time to time borrow additional
funds or issue additional equity securities, as appropriate. The amounts, terms
and timing of any such financings or issuances will depend upon a number of
factors, including the operations of the Company and the condition of the
financial markets.
RATIOS OF AVAILABLE INCOME TO FIXED CHARGES
FOR THE COMPANY AND ALL SUBSIDIARIES
<TABLE>
<CAPTION>
52 WEEKS ENDED 53 WEEKS ENDED 52 WEEKS ENDED
-------------- -------------- -------------------------------
JAN. 29 JAN. 30 JAN. 25 JAN. 26 JAN. 27
1994 1993 1992 1991 1990
-------------- -------------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Ratios of available income to
fixed charges............... 4.9 3.8 2.1 2.9 3.6
Ratios of available income to
combined fixed charges and
preferred stock dividend
requirement................. 4.3 3.4 1.8 2.6 3.2
</TABLE>
For purposes of computing the ratios of available income to fixed charges,
available income is determined by adding fixed charges to income from continuing
operations before income taxes and before capitalized interest. Fixed charges
are interest expense and a portion of rental expense representative of interest.
For purposes of computing the ratios of available income to combined fixed
charges and preferred dividend requirement, fixed charges are further increased
by the preferred stock dividend requirement. The interest cost of the LESOP
notes guaranteed by the Company is not included in fixed charges.
The Company believes that due to the seasonal nature of its business,
ratios for a period other than a 52 or 53 week period are inappropriate.
DESCRIPTION OF SECURITIES
DEBT SECURITIES
The Debt Securities are to be issued under an Indenture, dated as of April
1, 1994 (said Indenture being herein called the "Indenture"), between the
Company and Bank of America National Trust and Savings Association, as Trustee
("Trustee"). A copy of the Indenture substantially in the form in which it is to
be
3
<PAGE> 5
executed is included as an exhibit to the Registration Statement of which this
Prospectus forms a part. The following statements are subject to the detailed
provisions of the Indenture, including the definitions therein of certain terms
used herein without definition. Wherever particular provisions of the Indenture
are referred to below, such provisions are incorporated by reference as a part
of the statement made, and the statement is qualified in its entirety by such
reference.
GENERAL
The Indenture does not limit the amount of Debt Securities which can be
issued thereunder. Under the Indenture, Debt Securities may be issued in one or
more series, each in an aggregate principal amount (in U. S. dollars or the
equivalent thereof denominated in foreign currency or composite currencies such
as the ECU) authorized by the Company prior to issuance.
Reference is made to the Prospectus Supplement for certain specified terms
with respect to the Debt Securities being offered hereby, including, but not
limited to (1) the terms set forth on the cover page of this Prospectus; (2) the
obligation, if any, of the Company to redeem or purchase the Debt Securities
pursuant to any sinking fund or analogous provisions or at the option of the
holder thereof and the period or periods within and the price or prices at which
the Debt Securities will be redeemed or purchased, in whole or in part, pursuant
to such obligation, and the other detailed terms and provisions of such
obligation; (3) if the amount of payments of principal of or any premium or
interest on any of the Debt Securities may be determined with reference to an
index, the manner in which such amounts shall be determined; and (4) whether any
of the Debt Securities shall be issuable in whole or in part in the form of one
or more Global Securities (as described below) and, if so, the Depository for
such Global Security or Securities, and the circumstances under which any such
Global Security or Securities may be exchanged for Debt Securities registered in
the name of, and any transfer of such Global Security or Securities may be
registered to, a person other than such Depository or its nominee.
The Debt Securities offered hereby will be unsecured and will rank pari
passu with all other unsecured and unsubordinated indebtedness of the Company.
Unless otherwise provided in the Prospectus Supplement, the Debt Securities
will be issued only in registered form without coupons and may be issued (in the
case of dollar denominated Debt Securities) in denominations of $1,000 and any
integral multiple thereof. The Debt Securities of a series may be represented,
in whole or in part, by one or more permanent Global Securities in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding Debt Securities of the series to be represented
by such Global Security or Securities. Any such Global Security deposited with a
Depository or its nominee and bearing the legend required by the Indenture may
not be surrendered for transfer or exchange except by the Depository for such
Global Security or any nominee of such Depository, except if the Depository
notifies the Company that it is unwilling or unable to continue as Depository,
or the Depository ceases to be qualified as required by the Indenture, or the
Company instructs the Trustee in accordance with the Indenture that such Global
Security shall be so registrable and exchangeable, or there shall exist such
other circumstances, if any, as may be specified in the applicable Prospectus
Supplement.
The specific terms of the depository arrangement with respect to any
portion of a series of Debt Securities to be represented by one or more Global
Securities will be described in the applicable Prospectus Supplement. Beneficial
interests in Global Securities will only be evidenced by, and transfers thereof
will only be effected through, records maintained by the Depository and the
institutions that are participants in the Depository.
At the option of the Holder, subject to the terms of the Indenture and the
limitations applicable to Global Securities, Debt Securities of any series will
be exchangeable for other Debt Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor. The Debt
Securities may be transferred or exchanged without payment of any service
charge, other than any tax or other governmental charge payable in connection
therewith. (Article Two)
The principal of (and premium, if any) and interest, if any, on the Debt
Securities will be payable, and the transfer of the Debt Securities will be
registrable, at the agency or agencies maintained by the Company;
4
<PAGE> 6
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as it appears
in the Security Register. (Sections 2.07 and 2.10)
Some of the Debt Securities may be issued as discounted Debt Securities
(bearing no interest or bearing interest at a rate which at the time of issuance
is below market rate) to be sold at a substantial discount below their stated
principal amount. Federal income tax consequences and other special
considerations applicable to any such discounted Debt Securities will be
described in the Prospectus Supplement relating thereto. Debt Securities may
also be issued under the Indenture upon the exercise of Warrants. See "Warrants"
below.
RESTRICTIVE COVENANTS
Limitations on Liens. The Indenture provides that the Company may not, nor
may it permit any Restricted Subsidiary to, issue, assume or guarantee evidences
of indebtedness for money borrowed which are secured by any mortgage, security
interest, pledge or lien ("mortgage") of or upon any Principal Property or of or
upon any shares of stock or evidences of indebtedness for borrowed money issued
by any Restricted Subsidiary and owned by the Company or any Restricted
Subsidiary, whether owned at the date of the Indenture or thereafter acquired,
without effectively providing that the Principal Amount of the Debt Securities
from time to time Outstanding shall be secured equally and ratably by such
mortgage, except that this restriction will not apply to (1) mortgages on any
property existing at the time of its acquisition; (2) mortgages on property of a
corporation existing at the time such corporation is merged into or consolidated
with, or disposes of substantially all its properties (or those of a division)
to, the Company or a Restricted Subsidiary; (3) mortgages on property of a
corporation existing at the time such corporation first becomes a Restricted
Subsidiary; (4) mortgages securing indebtedness of a Restricted Subsidiary to
the Company or to another Restricted Subsidiary; (5) mortgages to secure the
cost of acquisition, construction, development or substantial repair, alteration
or improvement of property if the commitment to extend the credit secured by any
such mortgage is obtained within 12 months after the later of the completion or
the placing in operation of the acquired, constructed, developed or
substantially repaired, altered or improved property; (6) mortgages securing
current indebtedness (as defined); or (7) any extension, renewal or replacement
(or successive extensions, renewals or replacements), in whole or in part, of
any mortgage referred to in clauses (1) through (6) provided, however, that the
principal amount of indebtedness secured thereby and not otherwise authorized by
said clauses (1) to (6), inclusive, shall not exceed the principal amount of
indebtedness, plus any premium or fee payable in connection with any such
extension, renewal or replacement, so secured at the time of such extension,
renewal or replacement. However, the Company or any Restricted Subsidiary may
issue, assume or guarantee indebtedness secured by mortgages which would
otherwise be subject to the foregoing restriction in any aggregate amount which,
together with all other such indebtedness outstanding, all attributable debt
outstanding under the provisions described in the last sentence under
Limitations on Sale and Lease-Back Transactions below and all Senior Funded
Indebtedness issued, assumed or guaranteed by any Restricted Subsidiary, does
not exceed 5% of Stockholders' Equity. (Section 5.08)
Limitations on Sale and Lease-Back Transactions. The Indenture provides
that neither the Company nor any Restricted Subsidiary may enter into any Sale
and Lease-Back Transaction with respect to any Principal Property (except for
transactions involving leases for a term, including renewals, of not more than
three years and except for transactions between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries), if the purchaser's commitment is
obtained more than 12 months after the later of the acquisition or completion or
the placing in operation of such Principal Property or of such Principal
Property as constructed or developed or substantially repaired, altered or
improved. This restriction will not apply if either (a) the Company or such
Restricted Subsidiary would be entitled pursuant to the provision described in
the first sentence under Limitations on Liens above to issue, assume or
guarantee debt secured by a mortgage on such Principal Property without equally
and ratably securing the Debt Securities from time to time outstanding or (b)
the Company applies within 180 days an amount equal to, in the case of a sale or
transfer for cash, the net proceeds (not exceeding the net book value) and,
otherwise, an amount equal to the fair value (as determined by its Board of
Directors) of the Principal Property so leased to the retirement of Debt
Securities or other Senior Funded Indebtedness of the Company or a Restricted
Subsidiary, subject to
5
<PAGE> 7
reduction as set forth in the Indenture in respect of Debt Securities and other
Senior Funded Indebtedness retired during such 180-day period otherwise than
pursuant to mandatory sinking fund or prepayment provisions and payments at
maturity. The Company or any Restricted Subsidiary, however, may enter into a
Sale and Lease-Back Transaction which would otherwise be subject to the
foregoing restriction so as to create an aggregate amount of attributable debt
(as defined) which, together with all other such attributable debt outstanding,
all indebtedness outstanding under the provision described in the last sentence
under Limitations on Liens above and all Senior Funded Indebtedness issued,
assumed or guaranteed by any Restricted Subsidiary, does not exceed 5% of
Stockholders' Equity. (Section 5.09)
Waiver of Covenants. The Indenture provides that the Holders of a majority
(unless a greater requirement with respect to any series of Debt Securities is
specified for this purpose, in which case the requirement specified) in
Principal Amount of the Outstanding Debt Securities of a particular series may
waive compliance as to such series with certain covenants or conditions set
forth in the Indenture, including those described above. (Section 5.10)
Consolidation, Merger or Sale of Assets of the Company. The Indenture
provides that the Company may not consolidate with or merge into any other
corporation or sell its assets substantially as an entirety, unless (1) the
corporation formed by such consolidation or into which the Company is merged or
the Person which acquires its assets is a corporation organized in the United
States and expressly assumes the due and punctual payment of the principal of
(and premium, if any) and interest, if any, on all the Debt Securities and the
performance of every covenant of the Indenture on the part of the Company, and
(2) immediately after giving effect to such transaction, no Event of Default,
and no event which, after notice or lapse of time, or both, would become an
Event of Default, shall have happened and be continuing. Upon any such
consolidation, merger or sale, the successor corporation formed by such
consolidation or into which the Company is merged or to which such sale is made
will succeed to, and be substituted for, the Company under the Indenture, and
the predecessor corporation shall be released from all obligations and covenants
under the Indenture and the Debt Securities. (Article Eleven)
Unless otherwise provided in the 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 such Holders.
DEFINITIONS
"Principal Amount" means, when used with respect to any Debt Security, the
amount of principal thereof that could then be declared due and payable as a
result of an Event of Default with respect to such Debt Security. "Principal
Property" means all real and tangible property owned by the Company or a
Restricted Subsidiary constituting a part of any store, warehouse or
distribution center located within the United States, exclusive of motor
vehicles, mobile materials-handling equipment and other rolling stock, cash
registers and other point of sale recording devices and related equipment, and
data processing and other office equipment, provided the net book value of all
real property (including leasehold improvements) and store fixtures constituting
a part of such store, warehouse or distribution center exceeds 0.25% of
Stockholders' Equity. "Restricted Subsidiary" means any Subsidiary (as defined)
of the Company or of a Restricted Subsidiary which the Company designates as a
Restricted Subsidiary, which designation shall not have been canceled. However,
no subsidiary for which the designation of Restricted Subsidiary has been
canceled may be redesignated as such if during any period following cancellation
of its previous designation as a Restricted Subsidiary, such Subsidiary shall
have entered into a Sale and Lease-Back Transaction which would have been
prohibited had it been a Restricted Subsidiary at the time of such Transaction.
"Senior Funded Indebtedness" of the Company means any Funded Indebtedness of the
Company unless in any instruments evidencing or securing such Funded
Indebtedness it is provided that such Funded Indebtedness is subordinate in
right of payment to the Debt Securities to the extent provided in the Indenture.
"Senior Funded Indebtedness" of a Restricted Subsidiary means Funded
Indebtedness of the Restricted Subsidiary and the aggregate preference on
involuntary liquidation of preferred stock of such Subsidiary. "Funded
Indebtedness" of a corporation means the principal of (a) indebtedness for money
borrowed or evidenced by an instrument given in connection with an acquisition
which is not payable on demand and which matures, or which such
6
<PAGE> 8
corporation has the right to renew or extend to a date, more than one year after
the date of determination, (b) any indebtedness of others of the kinds described
in the preceding clause (a) for the payment of which such corporation is
responsible or liable as a guarantor or otherwise, and (c) amendments, renewals
and refundings of any such indebtedness. For the purposes of the definition of
"Funded Indebtedness", the term "principal" when used at any date with respect
to any indebtedness means the amount of principal of such indebtedness that
could be declared to be due and payable on that date pursuant to the terms of
such indebtedness. "Stockholders' Equity" means the aggregate of (a) capital and
reinvested earnings, after deducting the cost of shares of capital stock of the
Company held in its treasury, of the Company and consolidated Subsidiaries plus
(b) deferred tax effects. (Section 1.01)
EVENTS OF DEFAULT, NOTICE AND WAIVER
The Indenture provides that if an Event of Default shall have occurred and
be continuing with respect to any series of Debt Securities at the time
Outstanding, either the Trustee or the Holders of not less than 25% (unless a
different percentage with respect to any series of Debt Securities is specified
for this purpose, in which case the percentage specified) in Outstanding
Principal Amount of such series may declare to be due and payable immediately
the Principal Amount (or specified portion thereof) of such series, together
with interest, if any, accrued thereon. (Section 7.02)
The Indenture defines an Event of Default with respect to any series of
Debt Securities as any one of the following events: (a) default for 30 days in
payment of any interest due with respect to any Debt Security of such series;
(b) default for 30 days in making any sinking fund payment due with respect to
any Debt Security of such series; (c) default in payment of principal of (or
premium, if any, on) any Debt Security of such series when due; (d) default for
90 days after notice to the Company by the Trustee or by Holders of not less
than 25% in Principal Amount of the Debt Securities then Outstanding of such
series in the performance of any other covenant for the benefit of such series;
(e) certain events of bankruptcy, insolvency and reorganization; and (f) any
additional event specified as an "Event of Default" for the benefit of such
series. (Section 7.01) No Event of Default with respect to a particular series
of Debt Securities issued under the Indenture necessarily constitutes an Event
of Default with respect to any other series of Debt Securities issued
thereunder.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default, give to the Holders of the Debt Securities of each
series as to which such default has occurred notice of such default known to it,
unless cured or waived; provided that, except in the case of default in the
payment of principal of (or premium, if any) or interest, if any, or in the
payment of any sinking fund installment in respect of any of the Debt
Securities, the Trustee will be protected in withholding such notice if it in
good faith determines that the withholding of such notice is in the interests of
the Holders of the series as to which such default has occurred. The term
"default" for the purpose of this provision means any event which is, or after
notice or lapse of time, or both, would become, an Event of Default. (Section
8.02)
The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during the continuance of an Event of Default to act with
the required standard of care, to be indemnified by the Holders of Debt
Securities before proceeding to exercise any right or power under the Indenture
at the request of such Holders. (Section 8.03) The Indenture provides that the
Holders of a majority (unless a greater requirement with respect to any series
of Debt Securities is specified for this purpose, in which case the requirement
specified) in Outstanding Principal Amount of a series of Debt Securities may,
subject to certain exceptions, on behalf of the Holders of the Debt Securities
of such series direct the time, method and place of conducting proceedings for
remedies available to the Trustee, or exercising any trust or power conferred on
the Trustee. (Section 7.12)
The Indenture includes a covenant that the Company will file annually with
the Trustee a certificate of no default, or specifying any default that exists.
(Section 5.06)
In certain cases, the Holders of a majority (unless a greater requirement
with respect to any series of Debt Securities is specified for this purpose, in
which case the requirement specified) in Outstanding Principal Amount of a
series of Debt Securities may on behalf of the Holders of the Debt Securities of
such series
7
<PAGE> 9
rescind, as to such series, a declaration of acceleration or waive, as to such
series, any past default or Event of Default relating to the Debt Securities of
such series, except a default not theretofore cured in payment of the principal
of (or premium, if any) or interest, if any, on any of such Debt Securities or
in respect of a provision which under the Indenture cannot be modified or
amended without the consent of the Holder of each Outstanding Debt Security of
such series. (Sections 7.02 and 7.13)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of 66 2/3% (unless a different percentage with
respect to any series of Debt Securities is specified for this purpose, in which
case the percentage specified) in Principal Amount of the Outstanding Debt
Securities of each series affected by such modification, to execute supplemental
indentures adding any provisions to or changing or eliminating any provisions of
the Indenture or modifying the rights of the Holders of such Debt Securities,
except that no such supplemental indenture may, without the consent of all
Holders of affected Debt Securities, (i) change the Stated Maturity of any Debt
Security or reduce the principal payable at Stated Maturity or which could be
declared due and payable prior thereto or change any redemption price thereof,
(ii) reduce the rate of interest payable on any Debt Security, (iii) adversely
affect the terms and provisions, if any, applicable to the conversion or
exchange of any Debt Securities, (iv) reduce the aforesaid percentage of Debt
Securities of any series or the percentage of Debt Securities of any series
specified in Section 5.10 or 7.13, (v) change any place or the currency of
payment of principal of (or premium, if any) or interest, if any, on any Debt
Security, or (vi) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security. (Section 10.02)
SATISFACTION AND DISCHARGE PRIOR TO MATURITY
The Company may elect to provide with respect to any series of Debt
Securities that the Company may satisfy its obligations with respect to any
payment of principal (and premium, if any) or interest due on such series of
Debt Securities by depositing in trust with the Trustee money or U. S.
Government Obligations or a combination thereof sufficient to make such payment
when due. If such deposit is sufficient to make all payments of (1) interest on
such series of Debt Securities prior to their redemption or maturity, as the
case may be, and (2) principal of (and premium, if any) and interest on such
series of Debt Securities when due upon redemption or at maturity, as the case
may be, all the obligations of the Company under such series of Debt Securities
and the Indenture as it relates to such series of Debt Securities will be
discharged and terminated except as otherwise provided in the Indenture. "U. S.
Government Obligations" are defined to mean (i) securities backed by the full
faith and credit of the United States and (ii) depository receipts issued by a
bank or trust company as custodian and evidencing ownership by the holders of
such depository receipts of future payments of interest or principal, or both,
on such securities backed by the full faith and credit of the United States held
by such custodian.
For United States income tax purposes, it is likely that any such deposit
and discharge with respect to any Debt Securities will be treated as a taxable
exchange of such Debt Securities for interests in the trust. In that event, a
Holder will recognize gain or loss equal to the difference between the Holder's
cost or other tax basis for the Debt Securities and the value of the Holder's
interest in such trust; and thereafter will be required to include in income a
share of the income, gain and loss of the trust. Purchasers of the Debt
Securities should consult their own advisers with respect to the tax
consequences to them of such deposit and discharge, including the applicability
and effect of tax laws other than the United States income tax law.
In addition, the Company may elect to provide with respect to any series of
Debt Securities that the Company may be released from certain of its covenants
upon the satisfaction of certain conditions applicable to the securities of such
series.
8
<PAGE> 10
CONCERNING THE TRUSTEE
The Company and Funding Corporation maintain substantial lines of credit
and have other customary banking relationships with Bank of America National
Trust and Savings Association, the Trustee under the Indenture.
WARRANTS
The Company may issue with any Debt Securities being offered by it Warrants
for the purchase of other Debt Securities. Each issue of Warrants will be issued
under, and will be governed by, a Warrant Agreement ("Warrant Agreement"), to be
entered into between the Company and a warrant agent ("Warrant Agent"), to be
described in the Prospectus Supplement relating to the Debt Securities with
which the Warrants are to be issued. A copy of the proposed Warrant Agreement,
including the form of proposed Warrant Certificate representing the Warrants,
substantially in the form in which it is to be executed, is included as an
exhibit to the Registration Statement of which this Prospectus forms a part. The
following summaries of certain provisions of the Warrant Agreement and Warrant
Certificates do not purport to be complete and are subject to and qualified in
their entirety by reference to all the provisions set forth in the Warrant
Agreement and Warrant Certificates, respectively, including the definitions
thereof of certain terms.
Reference is made to the Prospectus Supplement relating to the Securities,
the Warrant Agreement relating to the Warrants and the Warrant Certificates
representing the Warrants for certain specific terms of the Warrants, which may
include: (1) designation, aggregate principal amount and terms of the Debt
Securities purchasable upon exercise of the Warrants; (2) designation and terms
of any related Debt Securities with which the Warrants are issued and the number
of Warrants issued with each such Debt Security; (3) date, if any, on and after
which the Warrants and the related Debt Securities will be separately
transferable; (4) principal amount of Debt Securities purchasable upon exercise
of one Warrant and the price at which such principal amount of Debt Securities
may be purchased upon such exercise; (5) date on which the right to exercise the
Warrants shall commence ("Commencement Date") and date on which such right shall
expire ("Expiration Date"); and (6) whether the Warrants represented by the
Warrant Certificates will be issued in registered or bearer form.
Warrant Certificates will be exchangeable for new Warrant Certificates of
different denominations, and Warrants may be exercised, at the agency or
agencies maintained for such purposes. Prior to the exercise of their Warrants,
holders of Warrants will not have any of the rights of Holders of the Debt
Securities purchasable upon such exercise and will not be entitled to payments
of principal of (or premium, if any) or interest, if any, on the Debt Securities
purchasable upon such exercise.
Each Warrant will entitle the holder to purchase for cash such principal
amount of Debt Securities at such exercise price as shall in each case be set
forth, or be determinable as set forth, in the Prospectus Supplement relating to
the Securities. Each Warrant may be exercised in whole but not in part at any
time on and after the Commencement Date and up to the close of business on the
Expiration Date set forth in the Prospectus Supplement relating to the
Securities. After the close of business on the Expiration Date, unexercised
Warrants will become void.
The exercise price of the Warrants will be that price applicable on the
date of receipt of payment therefor determined as set forth in the Prospectus
Supplement relating to the Securities. Upon receipt of payment of the exercise
price and the Warrant Certificate properly completed and duly executed at the
agency or agencies maintained by the Company for such purpose, the Company will,
as soon as practicable, forward the Debt Securities purchasable upon such
exercise. If less than all of the Warrants represented by such Warrant
Certificate are exercised, a new Warrant Certificate will be issued for the
Warrants remaining unexercised.
9
<PAGE> 11
VALIDITY OF SECURITIES
The validity of the Securities will be passed upon for the Company by C. R.
Lotter, Executive Vice President, Secretary and General Counsel of the Company,
and for any underwriters, agents or purchasers by Sullivan & Cromwell, New York,
New York. As of March 31, 1994, Mr. Lotter owned 31,241 shares of Common Stock
and Common Stock voting equivalents of the Company, including shares credited to
his accounts under the Company's Savings and Profit-Sharing Retirement Plan and
Savings, Profit-Sharing and Stock Ownership Plan as of March 31, 1994. As of
March 31, 1994, he had outstanding options to purchase 49,540 shares of Common
Stock.
EXPERTS
The financial statements and schedules as of January 29, 1994, January 30,
1993 and January 25, 1992, and for each of the years then ended contained or
incorporated by reference in (a) the Company's Annual Report on Form 10-K for
the fiscal year ended January 29, 1994 and (b) Funding Corporation's Annual
Report on Form 10-K for the fiscal year ended January 29, 1994 have been
incorporated herein by reference in reliance upon the reports of KPMG Peat
Marwick, independent certified public accountants (which reports each dated
February 24, 1994 are incorporated herein by reference to the aforementioned
Annual Reports on Form 10-K), and upon the authority of said firm as experts in
accounting and auditing. The Independent Auditors' Reports of KPMG Peat Marwick
covering the aforementioned consolidated financial statements and schedules of
the Company refer to the provisions of the Financial Accounting Standards
Board's Statement of Financial Accounting Standards No. 106, Employers'
Accounting for Postretirement Benefits Other Than Pensions, adopted by the
Company in 1991, and to the provisions of the Financial Accounting Standards
Board's Statement of Financial Accounting Standards No. 109, Accounting for
Income Taxes, adopted by the Company in 1993. To the extent that KPMG Peat
Marwick audits and reports on financial statements of the Company and Funding
Corporation issued at future dates, and consents to the use of their reports
thereon, such financial statements also will be incorporated by reference herein
in reliance upon their reports and said authority.
PLAN OF DISTRIBUTION
The Company may offer the Securities from time to time (i) through
underwriters or dealers, (ii) directly to one or more institutional purchasers,
or (iii) through agents.
Sales of Securities through underwriters may be through underwriting
syndicates led by one or more managing underwriters. The specific managing
underwriter or underwriters which may act with respect to the offer and sale of
any series of Securities are set forth on the cover of the Prospectus Supplement
in respect of such series and the members of the underwriting syndicate, if any,
are named in such Prospectus Supplement.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, or from time to time 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 Securities, underwriters may
be deemed to have received compensation from the Company in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of Securities for whom they may act as agents. Underwriters may sell
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agents.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Securities, and any discounts, concessions or
commissions allowed by underwriters to participating dealers, are set forth in
the Prospectus Supplement. Underwriters, dealers and agents participating in the
distribution of the Securities may be deemed to be underwriters, and any
discounts and commissions received by them and any profit realized by them on
resale of the Securities may be deemed to be underwriting discounts and
commissions, under the Securities Act of 1933.
10
<PAGE> 12
If so indicated in an applicable Prospectus Supplement, the Company will
authorize underwriters, dealers or agents to solicit offers by certain
institutions to purchase Securities from the Company pursuant to delayed
delivery contracts. The Prospectus Supplement relating thereto will also set
forth the price to be paid for Securities pursuant to such contracts, the
commissions payable for solicitation of such contracts, the date or dates in the
future for delivery of Securities pursuant to such contracts and any conditions
to which such contracts will be subject.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Company, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Securities Act of
1933.
Underwriters and agents may engage in transactions with, or perform
services for, the Company in the ordinary course of business.
11
<PAGE> 13
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses (exclusive of underwriting discounts and commissions) in
connection with the issuance and distribution of the Securities registered
hereunder.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee....................... $517,242
"Blue Sky" expenses....................................................... 35,000*
Printing and engraving expenses........................................... 90,000*
Trustee's fees and expense................................................ 25,000*
Accounting fees........................................................... 30,000*
Rating agency fees........................................................ 210,000
Miscellaneous expenses.................................................... 15,000*
Total................................................................ $922,242
--------
--------
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware permits
indemnification of the directors and officers of the Company involved in a civil
or criminal action, suit or proceeding, including, under certain circumstances,
suits by or in the right of the Company, for any expenses, including attorneys'
fees, and (except in the case of suits by or in the right of the Company) any
liabilities which they may have incurred in consequence of such action, suit or
proceeding under the conditions stated in said Section.
Article X of the Company's By-laws provides, in substance, for
indemnification by the Company of its directors and officers in accordance with
the provisions of the General Corporation Law of Delaware. The Company has
entered into indemnification agreements with its current directors and certain
of its current officers which generally provide for indemnification by the
Company except as prohibited by applicable law. To provide some assurance of
payment to the indemnitees of amounts to which they may become entitled pursuant
to the aforesaid agreements, the Company has funded a trust.
In addition, the Company has purchased insurance coverage under policies
which insure the Company for amounts which the Company is required or permitted
to pay as indemnification of directors and certain officers of the Company and
its subsidiaries, and which insure directors and certain officers of the Company
and its subsidiaries against certain liabilities which might be incurred by them
in such capacities and for which they are not entitled to indemnification by the
Company.
Furthermore, the Company, as well as its directors and officers, may be
entitled to indemnification by any underwriters named in the Prospectus
Supplement against certain civil liabilities under the Securities Act of 1933,
under agreements entered into between the Company and such underwriters.
II-1
<PAGE> 14
ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
1(a) Form of proposed Underwriting Agreement (including form of proposed Delayed Delivery
Contract) (filed as Exhibit 1 to Registrant's Registration Statement on Form S-3,
SEC file No. 2-79577, and incorporated herein by reference)
(b) Form of Proposed Agency Agreement
4(a) Indenture, dated as of April 1, 1994, between the Company and Bank of America
National Trust and Savings Association, Trustee
(b) Forms of Debt Securities registered hereunder may include the following, among
others:
(i) Form of % Note Due
(ii) Form of Zero Coupon Note Due
(iii) Form of % Debenture Due (Original Issue Discount)
(iv) Form of % Debenture Due
(v) Form of % Sinking Fund Debenture Due
(vi) Form of Extendible Note
(vii) Form of Medium-Term Note, Series (Fixed Rate)
(viii) Form of Medium-Term Note, Series (Floating Rate)
(c) Form of proposed Warrant Agreement (including form of proposed Warrant Certificate)
5 Opinion of C. R. Lotter with respect to the validity of the Securities
12 Computation of ratios (Computation of Ratios of Available Income to Combined Fixed
Charges and Preferred Stock Dividend Requirement and Computation of Ratios of
Available Income to Fixed Charges for the 52 weeks ended January 29, 1994, for the
53 weeks ended January 30, 1993, for the 52 weeks ended January 25, 1992, January
26, 1991, and January 27, 1990, respectively, were filed as Exhibit 12 (a) and 12(b)
to Registrant's Annual Report on Form 10-K for the 52 weeks ended January 29, 1994
(SEC file number 1-777), which Reports are incorporated herein by reference)
23(a) Consent of KPMG Peat Marwick
(b) Consent of C. R. Lotter (see Exhibit 5)
24 Powers of Attorney and related certified resolution
25 Statement of Eligibility and Qualification of Form T-1 of Bank of America National
Trust and Savings Association as Trustee under the Indenture pursuant to which the
Debt Securities registered hereunder are to be issued
99 Form of Pricing Supplement
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3, or Form S-8, and the information required
to be included in a post-effective amendment by those
II-2
<PAGE> 15
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 that are
incorporated by reference in the Registration Statement.
(2) that, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15 above, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE> 16
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 PLANO AND STATE OF TEXAS, ON THE 26TH DAY OF APRIL,
1994.
J. C. PENNEY COMPANY, INC.
By: /s/ D. A. MCKAY
D. A. MCKAY
VICE PRESIDENT AND TREASURER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ----------------------------------------------- --------------------- -------------------
<S> <C> <C>
W. R. HOWELL* Chairman of the Board
W. R. HOWELL (principal executive
officer); Director April 26, 1994
R. E. NORTHAM* Executive Vice President
R. E. NORTHAM (principal financial
officer) April 26, 1994
L. A. GISPANSKI* Vice President
L. A. GISPANSKI and Controller
(principal accounting
officer) April 26, 1994
M. A. BURNS* Director April 26, 1994
M. A. BURNS
C. H. CHANDLER* Director April 26, 1994
C. H. CHANDLER
V. E. JORDAN, JR* Director April 26, 1994
V. E. JORDAN, JR.
GEORGE NIGH* Director April 26, 1994
GEORGE NIGH
J. C. PFEIFFER* Director April 26, 1994
J. C. PFEIFFER
A. K. PYE* Director April 26, 1994
A. K. PYE
</TABLE>
II-4
<PAGE> 17
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ----------------------------------------------- --------------------- --------------------
<S> <C> <C>
C. S. SANFORD, JR.* Director April 26, 1994
C. S. SANFORD, JR.
J. D. WILLIAMS* Director April 26, 1994
J. D. WILLIAMS
BORIS YAVITZ* Director April 26, 1994
BORIS YAVITZ
*By: /s/ D. A. MCKAY
D. A. MCKAY
ATTORNEY-IN-FACT
</TABLE>
COPIES OF POWERS OF ATTORNEY AUTHORIZING L. A. GISPANSKI, C. R. LOTTER, D.
A. MCKAY, AND R. E. NORTHAM, AND EACH OF THEM, TO SIGN THIS REGISTRATION
STATEMENT ON BEHALF OF THE ABOVE NAMED DIRECTORS AND OFFICERS, AND A CERTIFIED
COPY OF A RESOLUTION OF THE BOARD OF DIRECTORS OF THE REGISTRANT AUTHORIZING L.
A. GISPANSKI, C. R. LOTTER, D. A. MCKAY, AND R. E. NORTHAM, AND EACH OF THEM, TO
SIGN AS ATTORNEY-IN-FACT ON BEHALF OF THE REGISTRANT, ARE BEING FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION SIMULTANEOUSLY HEREWITH.
II-5
<PAGE> 1
Exhibit 1(b)
$1,500,000,000
J. C. PENNEY COMPANY, INC.
Medium-Term Notes
-----------------
AGENCY AGREEMENT
----------------
_______________, 1994
CS First Boston Corporation
Park Avenue Plaza
New York, New York 10055.
Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower,
World Financial Center,
New York, New York 10291-1218.
Morgan Stanley & Co. Incorporated,
1251 Avenue of the Americas,
New York, New York 10020.
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Dear Sirs:
1. Introduction. J. C. PENNEY COMPANY, INC., a Delaware corporation
------------
("Issuer"), confirms its agreement with each of you (individually, an "Agent"
and collectively, "Agents") with respect to the issue and sale from time to
time by the Issuer of its medium-term notes registered under the Registration
Statement referred to in Section 2(a) (any such medium-term notes being
hereinafter referred to as the "Securities", which expression shall, if the
context so admits, include any permanent global Security), but the Issuer
reserves the right to sell Securities on its own behalf directly or through
affiliates, and upon notice to each of you, to enter into agreements
substantially identical hereto with other agents. Securities may be sold
pursuant to Section 3 of this Agreement or as contemplated by Section 11 of
this Agreement in an aggregate amount not to exceed the amount of Registered
Securities (as defined in Section 2(a) hereof) registered pursuant to such
Registration Statement reduced by the aggregate amount of any other Registered
Securities sold otherwise than pursuant to Section 3 of this Agreement. The
Securities will be issued under an indenture, dated as of April 1, 1994 (said
Indenture, and all indentures supplemental thereto, being hereinafter called
the "Indenture"), between the Issuer and Bank of America National Trust and
Savings Association, as trustee ("Trustee").
The Securities shall have the terms described in the Prospectus
referred to in Section 2(a) as it may be amended or supplemented from time to
time, including any
<PAGE> 2
supplement to the Prospectus that sets forth only the terms of a particular
issue of the Securities ("Pricing Supplement"). Securities will be issued, and
the terms thereof established, from time to time by the Issuer in accordance
with the Indenture and the Procedures (as defined in Section 3(d) hereof).
2. Representations and Warranties of the Issuer. The Issuer represents
--------------------------------------------
and warrants to, and agrees with, each Agent as follows:
(a) A Registration Statement (No. 33-_____), including a prospectus,
relating to debt securities of the Issuer, including the Securities
("Registered Securities"), has been filed with the Securities and Exchange
Commission ("Commission") and has become effective under the Securities
Act of 1933 ("Act"). Such Registration Statement, as amended as of the
Closing Date (as defined in Section 3(e) hereof), is hereinafter referred
to as the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as of the Closing Date, including
all material incorporated by reference therein, is hereinafter referred to
as the "Prospectus". Any reference in this Agreement to amending or
supplementing the Prospectus shall be deemed to include the filing of
materials incorporated by reference in the Prospectus after the Closing
Date and any reference in this Agreement to any amendment or supplement to
the Prospectus shall be deemed to include any such materials incorporated
by reference in the Prospectus after the Closing Date.
(b) On the effective date of the Registration Statement relating to
the Registered Securities, such Registration Statement conformed in all
respects to the requirements of the Act, the Trust Indenture Act of 1939,
as amended, ("Trust Indenture Act") and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and on the Closing Date, the Registration Statement and the
Prospectus; and at each of the times of acceptance and of delivery
referred to in Section 6(a) hereof and at each of the times of amendment
or supplementing referred to in Section 6(b) hereof (the Closing Date and
each such time being herein sometimes referred to as a "Representation
Date"), the Registration Statement and the Prospectus as then amended or
supplemented will conform in all respects to the requirements of the Act;
the Trust Indenture Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading, except that the foregoing does not apply
to statements in or omissions from any of such documents based upon (i)
written information furnished to the Issuer by any Agent specifically for
use therein or (ii) that part of the Registration Statement constituting
the Statement of Eligibility and Qualification under the Trust Indenture
Act (Form T-1) of the Trustee.
3. Appointment as Agents; Agreement of Agents; Solicitations as Agents.
-------------------------------------------------------------------
(a) Subject to the terms and conditions stated herein, and subject
to the right of the Issuer to sell Securities on its own behalf
directly or through affiliates or through other agents, the Issuer hereby
appoints each of the Agents as a non-exclusive agent of the Issuer for the
purpose of soliciting or receiving offers to purchase the Securities from the
Issuer by others.
-2-
<PAGE> 3
(b) On the basis of the representations and warranties contained
herein, but subject to the terms and conditions herein set forth, each Agent
agrees, as an agent of the Issuer, to use reasonable best efforts when
requested by the Issuer to solicit offers to, purchase the Securities upon the
terms and conditions set forth in the Prospectus, as from time to time amended
or supplemented.
Upon receipt of notice from the Issuer as contemplated by Section
4(b) hereof, each Agent shall promptly suspend its solicitation of offers to
purchase Securities until such time as the Issuer shall have furnished it with
an amendment or supplement to the Registration Statement or the Prospectus, as
the case may be, contemplated by Section 4(b) and shall have advised such Agent
that such solicitation may be resumed.
The Issuer reserves the right in its sole discretion, to suspend
solicitation of offers to purchase the Securities commencing at any time for
any period of time or permanently. Upon receipt of at least one Business Day's
prior notice from the Issuer, the Agents will immediately suspend solicitation
of offers to purchase Securities from the Issuer until such time as the Issuer
has advised the Agents that such solicitation may be resumed. For the purpose
of the foregoing sentence, "Business Days" shall mean any day that is not a
Saturday or Sunday, and that in The City of New York is not a day on which
banking institutions generally are authorized or obligated by law or executive
order to close.
The Agents are authorized to solicit offers to purchase Securities as
described in the Prospectus, as amended or supplemented, and only in a minimum
aggregate amount of $100,000 with integral multiples of $1,000 in excess
thereof (or the equivalent thereof in one or more currencies or currency units
other than U.S. dollars). Each Agent shall communicate to the Issuer, orally or
in writing, each reasonable offer to purchase Securities received by it as
agent. The Issuer shall have the sole right to accept offers to purchase the
Securities and may reject any such offer, in whole or in part. Each Agent shall
have the right, in its discretion reasonably exercised, without notice to the
Issuer, to reject any offer to purchase Securities received by it, in whole or
in part, and any such rejection shall not be deemed a breach of its agreement
contained herein.
No Security which the Issuer has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by the
Issuer, until such Security shall have been delivered to the purchaser thereof
against payment by such purchaser.
(c) At the time of delivery of, and payment for, any Securities sold
by the Issuer as a result of a solicitation made by, or offer to purchase
received by, an Agent, the Issuer agrees to pay such Agent a commission in
accordance with the schedule set forth in Exhibit A hereto.
(d) Administrative procedures respecting the sale of Securities
("Procedures") shall be agreed upon from time to time by the Agents and the
Issuer. The initial Procedures which are set forth in Exhibit B hereto, shall
remain in effect until changed by agreement among the Issuer and the Agents.
Each Agent and the Issuer agree to perform the respective duties and
obligations specifically provided to be performed by each of them herein and in
the Procedures. The Issuer will furnish to the Trustee a copy of the Procedures
as from time to time in effect.
(e) The documents required to be delivered by Section 5 hereof shall
be delivered at the office of Issuer, 6501 Legacy Drive, Plano, Texas, not
later than
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<PAGE> 4
10:00 a.m., New York City time, on the date at this Agreement or at such later
time as may be mutually agreed by the Issuer and the Agents, which in no event
shall be later than the time at which the Agents commence solicitation of
purchases of Securities hereunder, such time and date being herein called the
"Closing Date".
4. Certain Agreements of the Issuer. The Issuer agrees with the
--------------------------------
Agents that it will furnish to Sullivan & Cromwell, counsel for the
Agents, one signed copy of the Registration Statement, including all exhibits,
in the form it became effective and of all amendments thereto and that, in
connection with each offering of Securities:
(a) The Issuer will advise each Agent promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and of
the institution by the Commission of any stop order proceedings in
respect of the Registration Statement or of any part thereof and will use
its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act and no suspension of
solicitation of offers to purchase Securities pursuant to Section 3(b) or
this Section 4(b) shall be in effect (any such time and any time when
either any Agent shall own any Securities with the intention of reselling
them or the Issuer has accepted an offer to purchase Securities but the
related settlement has not occurred being referred to herein as a
"Marketing Time"), any event occurs as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or if it is
necessary at any such time to amend the Prospectus to comply with the Act,
the Issuer will promptly notify each Agent to suspend solicitation of
offers to purchase the Securities; and if the Issuer shall decide to amend
or supplement the Registration Statement or the Prospectus, it will
promptly advise each Agent by telephone (with confirmation in writing)
and, subject to the provisions of subsection (a) of this Section, will
promptly prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance Notwithstanding the foregoing, if, at the time any
such event occurs or it becomes necessary to amend the Prospectus to
comply with the Act, any Agent shall own any of the Securities with the
intention of reselling them, or the Issuer has accepted an offer to
purchase Securities but the related settlement has not occurred, the
Issuer, subject to the provisions of subsection (a) of this Section, will
promptly prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which
will effect such compliance. Neither the Agents' consent to, nor their
delivery of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 5.
(c) The Issuer will file promptly all documents required
to be filed with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act. In addition, on or prior to the date on which
the Issuer makes any announcement to the general public concerning earnings
or concerning any other event which is required to be described, or which
the Issuer prosposes to describe, in a document filed pursuant to the
Exchange Act, the Issuer will furnish the information contained or to be
contained in such announcement to each Agent, confirmed in writing and,
subject to the provisions of subsections (a) and (b) of this Section, will
cause the Prospectus to be amended or
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<PAGE> 5
supplemented to reflect the information contained in such announcement
The Issuer also will furnish each Agent with copies of all material
press releases or announcements to the general public. The Issuer will
immediately notify each Agent of any downgrading in the rating of any debt
securities of the Issuer by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), with
which the Company has an ongoing relationship, or any public announcement
that any such organization has placed its rating of the Issuer's debt
securities under surveillance or review (other than an announcement with
positive implications of a possible upgrading) as soon as the Issuer
learns of such downgrading or public announcement.
(d) As soon as practicable, but not later than 16 months after the
date of each acceptance by the Issuer of an offer to purchase Securities
hereunder, the Issuer will make generally available to Its securityholders
an earnings statement covering a period of at least 12 months beginning
after the later of (i) the effective date of the registration statement
relating to the Registered Securities, (ii) the effective date of the most
recent post-effective amendment to the Registration Statement to become
effective prior to the date of such acceptance and (iii) the date of the
Issuer's most recent Annual Report on Form 10-K filed with the Commission
prior to the date of such acceptance, which will satisfy the provisions of
Section 11(a) of the Act.
(e) The Issuer will furnish to each Agent copies of the Registration
Statement, including all exhibits, the Prospectus and all amendments and
supplements to such documents (including any Pricing Supplement), in
each case as soon as available and in such quantities as are reasonably
requested.
(f) The Issuer will use its reasonable best efforts to arrange
for the qualification of the Securities for sale, and the determination of
their eligibility for investment, under the laws of such jurisdictions as
the Agents reasonably designate and will in diligently endeavor to
continue such qualifications in effect so long as required for the
distribution of the Securities.
(g) So long as any Securities are outstanding, the Issuer will
furnish to the Agents, (i) as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such year,
(ii) as soon as practicable, a copy at each report or definitive proxy
statement of the Issuer filed with the Commission under the Exchange Act
or mailed to stockholders, and (iii) from time to time, such other
information concerning the Issuer as the Agents may reasonably request.
(h) The Issuer will pay all reasonable expenses incident to the
performance of its obligations under this Agreement or any agreement
contemplated by Section 11 hereof and will reimburse each Agent for any
reasonable expenses (including reasonable fees and disbursements of
counsel) incurred by it In connection with qualification of the Securities
for sale, and determination of their eligibility for investment under the
laws of such jurisdictions as such Agent may reasonably designate and the
printing of memoranda relating thereto, for any fees charged by investment
rating agencies for the rating of the Securities, for any filing fee of
the National Association of Securities Dealers, Inc. relating to the
Securities, for reasonable expenses incurred by each Agent in distributing
the Prospectus and all supplements thereto (including any Pricing
Supplement), any preliminary prospectuses and any preliminary prospectus
supplements to such Agent and for each Agent's reasonable expenses
(including the
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<PAGE> 6
reasonable fees and disbursements of counsel to the Agents) incurred in
connection with the establishment or maintenance of the program
contemplated by this Agreement or otherwise in connection with the
activities of the Agents under this Agreement (including any purchases of
Notes by any Agent for resale as contemplated by Section 11).
5. Conditions of Obligations of the Agents. The obligation of
---------------------------------------
each Agent under this Agreement at any time to solicit offers to purchase
the Securities is subject to the accuracy, on the date hereof, on each
Representation Date and on the date of each such solicitation, of the
representations and warranties of the Issuer herein, to the accuracy, on each
such date, of the statements of the Issuer's officers made pursuant to the
provisions hereof, to the performance, on or prior to each such date, by the
Issuer of its obligtions hereunder, and to each of the following additional
conditions precedent:
(a) The Prospectus, as amended or supplemented as of any
Representation Date or date of such solicitation, as the case may be,
shall have been filed with the Commission in accordance with the Rules
and Regulations and no stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Issuer or any Agent, shall be contemplated by the
Commission.
(b) Neither the Registration Statement nor the Prospectus, as amended
or supplemented as of any Representation Date or date of such
solicitation, as the case may be, shall contain any untrue statement of
fact or omit to state a fact which is required to be stated therein or is
necessary to make the statements therein not misleading, which, in the
opinion of Sullivan & Cromwell or counsel of the Issuer, is material.
(c) There shall not have occurred any change, or any development
involving a prospective change, in or affecting particularly the
business or properties of the Issuer and subsidiaries, taken as a
whole, which, in the judgment at such Agent, materially impairs the
investment quality of the Securities.
(d) At the Closing Date, the Agents shall have received an
opinion, dated the Closing Date, of C. R. Lotter, Executive Vice President,
Secretary and General Counsel of the Issuer, to the effect that:
(i) The Issuer has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
and the Issuer is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which it
owns or leases substantial properties or in which the conduct of its
business requires such qualification;
(ii) The Indenture has been duly authorized, executed and
delivered by the Issuer and has been duly qualified under the
Trust Indenture Act and constitutes a valid and legally binding
obligation of the Issuer enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
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<PAGE> 7
(iii) The Securities have been duly authorized and established
in conformity with the Indenture, and, when the terms of a particular
Security and of its issuance and sale have been duly authorized and
established by all necessary corporate action in conformity with the
Indenture, and such Security has been duly completed, executed,
authenticated and issued in accordance with the Indenture and
delivered against payment as contemplated by this Agreement, such
Security will constitute a valid and legally binding obligation of
the Issuer enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles, it
being understood that such counsel may (a) assume that at the time of
the issuance, sale and delivery of each Security the authorization of
such series will not have been modified or rescinded and there will
not have occurred any change in law affecting the validity, legally
binding character or enforceability of such Security, (b) assume that
neither the issuance, sale and delivery of any Security, nor any of
the terms of such Security, nor compliance by the Issuer with such
terms, will violate any applicable law, any agreement or instrument
then binding upon the Issuer or any restriction imposed by any court
or governmental body having jurisdiction over the Issuer, and (c)
state that as of the date of such opinion a judgment for money in an
action based on Securities denominated in foreign currencies or
currency units in a Federal or State court in the United States
ordinarily would be enforced in the United States only in United
States dollars, and that the date used to determine the rate of
conversion of the foreign currency or currency unit in which a
particular Security is denominated into United States dollars will
depend upon various factors, including which court renders the
judgment;
(iv) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) under the Act specified in such opinion
on the date specified therein, and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the registration statement relating
to the Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the Closing Date,
and any amendment or supplement thereto, as of its date, complied as
to form in all material respects with the requirements of the Act,
the Trust Indenture Act and the Rules and Regulations; there has not
been disclosed to such counsel any information giving him reason to
believe that such Registration Statement as of its effective date,
the Registration Statement or the Prospectus, as of the Closing Date,
or any such amendment or supplement, as of its date, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading; the descriptions in the Registration
Statement and the Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate in all
material respects and fairly present the information required to be
shown; and such counsel does not know of any legal or governmental
proceedings required to be described in the Prospectus which are not
described as required, nor of any contracts or documents of a
character
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<PAGE> 8
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
which are not described and filed as required; it being understood
that such counsel need express no opinion as to the financial
statements or other financial data contained in the Registration
Statement or the Prospectus;
(v) No consent, approval, authorization or order of, or filing
with any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Securities by the
Issuer, except such as have been obtained and made under the Act and
the Trust Indenture Act and such as may be required under state
securities laws (it being understood that such counsel may assume
with respect to each particular Security that the inclusion of any
alternative or additional terms in such Security that are not
currently specified in the forms of Securities examined by such
counsel would not require the Issuer to obtain any regulatory
consent, authorization or approval or make any regulatory filing in
order for the Issuer to issue, sell and deliver such Security);
(vi) The execution, delivery and performance of the Indenture,
this Agreement and the issuance and sale of the Securities, and
compliance with the terms and provisions thereof, will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Issuer or any of its property or any agreement
or instrument to which the Issuer is a party or by which the Issuer
is bound or to which any of the property of the Issuer is subject, or
the charter or by-laws of the Issuer, and the Issuer has full power
and authority to authorize, issue and sell the Securities as
contemplated by this Agreement (it being understood that such counsel
may assume with respect to each particular Security that the
inclusion of any alternative or additional terms in such Security
that are not currently specified in the forms of Securities examined
by such counsel will not cause the issuance, sale or delivery of such
Security, the terms of such Security, or the compliance by the
Company with such terms, to violate any of the court orders or laws
specified in this paragraph or to result in a default under or a
breach of any of the agreements specified in this paragraph); and
(vii) This Agreement has been duly authorized, executed and
delivered by the Issuer.
(e) At the Closing Date, the Agents shall have received a
certificate, dated the Closing Date, of the Chairman of the Board, any
Vice Chairman of the Board, the President of JCPenney Stores & Catalog or
any Vice President and a principal financial or accounting officer of the
Issuer in which such officers, to the best of their knowledge after
reasonable investigation, shall state that (i) the representations and
warranties of the Issuer in this Agreement are true and correct, (ii) the
Issuer has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date, (iii) no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for
that purpose have been instituted or are contemplated by the Commission,
and (iv) subsequent to the date of the most recent financial statements in
the Prospectus, there has been no material adverse change in the financial
position or results of operations of the Issuer and its subsidiaries,
taken as
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<PAGE> 9
a whole, which materially impairs the investment quality of the
Securities, except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(f) At the Closing Date, the Agents shall have received a letter,
dated the Closing Date, of KPMG Peat Marwick, in form and substance
satisfactory to the Agents, with respect to financial statements and
certain financial Information contained in or incorporated by reference
in the Registration Statement and the Prospectus. Such letter shall be in
substantially the form, and contain substantially the information, as
those letters heretofore furnished by KPMG Peat Marwick in connection
with underwritten offerings of the Issuer.
(g) The Agents shall have received from Sullivan & Cromwell,
counsel for the Agents, such opinion or opinions, dated the Closing Date,
with respect to the incorporation of the issuer, the validity of the
Securities, the Registration Statement, the Prospectus and to such of the
matters stated in paragraph 5(d) above and other related matters as they
may require, and the Issuer shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
The Issuer will furnish the Agents with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Additional Covenants of the Issuer. The Issuer agrees that:
---------------------------------- ----------------------
(a) Each acceptance by the Issuer of an offer for the purchase of
Securities shall be deemed to be an affirmation that its representations
and warranties contained in this Agreement are true and correct at the
time of such acceptance and a covenant that such representations and
warranties will be true and correct at the time of delivery to the
purchaser of the Securities as though made at and as of each such time, it
being understood that such representations and warranties shall relate to
the Registration Statement and the Prospectus as amended or supplemented
at each such time. Each such acceptance by the Issuer of an offer to
purchase of Securities shall be deemed to constitute an additional
representation, warranty and agreement by the Issuer that, as of the
settlement date for the sale of such Securities, after giving effect to
the issuance of such Securities, of any other Securities to be issued on
or prior to such settlement date and of any other Registered Securities to
be issued and sold by the Issuer on or prior to such settlement date, the
aggregate amount of Registered Securities (including any Securities) which
have been issued and sold by the Issuer will not exceed the amount of
Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement), the
Issuer shall, (A) concurrently with such amendment or supplement, if such
amendment or supplement shall occur at a Marketing Time, or (B)
immediately at the next Marketing Time if such amendment or supplement
shall not occur at a Marketing Time, furnish the Agents with a
certificate, dated the date of delivery thereof, of the Chairman of the
Board, any Vice Chairman of the Board, the President of JCPenney Stores
and Catalog or any Vice President and a principal financial or accounting
officer of the Issuer, in form satisfactory to the Agents, to the effect
that the statements contained in the certificate covering the matters set
forth in Section 5(e) hereof which was last furnished to the Agents are
true and correct at the time of such amendment or supplement, as though
made at and as of such time or, in lieu at such certificate, a
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<PAGE> 10
certificate of the same tenor as the certificate referred to in Section
5(e); provided, however, that any certificate furnished under this Section
-----------------
6(b) shall relate to the Registration Statement and the Prospectus as
amended or supplemented at the time of delivery of such certificate and, in
the case of the matters set forth in clause (ii) of Section 5(e), to the
time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the
Issuer shall, (A) concurrently if such Representation Date shall occur at
a Marketing Time, or (B) immediately at the next Marketing Time if such
Representation Date shall not occur at a Marketing Time, furnish the Agents
with a written opinion or opinions, dated the date of such Representation
Date, of counsel for the Issuer, in form satisfactory to the Agents, to
the effect set forth in Section 5(d) hereof; provided, however, that to
-----------------
the extent appropriate such opinion or opinions may reconfirm matters set
forth in a prior opinion delivered under Section 5(d) or this Section
6(c); provided further, however, that any opinion or opinions furnished
-------------------------
under this Section 6(c) shall relate to the Registration Statement and
the Prospectus as amended or supplemented at such Representation Date
and shall state that the Securities sold in the relevant Applicable Period
(as defined below) have been duly executed, authenticated, issued and
delivered and constitute valid and legally binding obligations of the
Issuer enforceable in accordance with their terms, subject only to the
exceptions set forth in clause (iii) of Section 5(d) hereof as to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles, and conform to the
description thereof contained in the Prospectus as amended or supplemented
at the relevant settlement date or dates for the sale of such Securities.
For the purpose of this Section 6(c), "Applicable Period" shall mean with
respect to any opinion delivered on a Representation Date the period
commencing on the date as of which the most recent prior opinion
delivered under Section 5(d) or this Section 6(c) speaks and ending on
such Representation Date.
(d) At each Representation Date referred to in Section 6(b) on which
the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information, the Issuer shall
cause KPMG Peat Marwick, (A) concurrently if such Representation Date
shall occur at a Marketing Time, or (B) immediately at the next Marketing
Time if such Representation Date shall not occur at a Marketing Time, to
furnish the Agents with a letter, addressed jointly to the Issuer and the
Agents and dated the date of such Representation Date, in form and
substance satisfactory to the Agents, to the effect set forth in Section
5(f) hereof; provided, however, that to the extent appropriate such letter
-----------------
may reconfirm matters set forth in a prior letter delivered pursuant to
Section 5(f) or this Section 6(d); provided further, however, that any
-------------------------
letter furnished under this Section 6(d) shall relate to the Registration
Statement and the Prospectus as amended or supplemented at such
Representation Date, with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Issuer.
(e) On each settlement date for the sale of Securities, the Issuer
shall, if reasonably requested by the Agent that solicited or received
the offer to purchase any Securities being delivered on such settlement
date, furnish such Agent with a written opinion or opinions, dated the
date of delivery thereof, of counsel for the Issuer, in form satisfactory
to such Agent, to the effect set forth in clauses (i), (ii) and (iii) of
Section 5(d) hereof; provided, however, that any opinion furnished under
-----------------
this Section 6(e) shall relate to the Prospectus as amended or
supplemented at such
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<PAGE> 11
settlement date and shall state that the Securities being sold by the
Issuer on such settlement date, when delivered against payment therefor as
contemplated by this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Issuer enforceable in accordance with their
terms, subject only to the exceptions set forth in clause (iii) of
Section 5(d) hereof as to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, and will conform to the description thereof contained in the
Prospectus as amended or supplemented at such settlement date.
(f) The Issuer agrees that any obligation of a person who has agreed
to purchase Securities to make payment for and take delivery of such
Securities shall be subject to (i) the accuracy, in all material respects,
on the related settlement date fixed pursuant to the Procedures, of the
Issuer's representation and warranty deemed to be made to the Agents
pursuant to the last sentence of subsection (a) of this Section 6, and
(ii) the satisfaction, on such settlement date, of each of the conditions
set forth in Sections 5(a), (b) and (c), it being understood that under no
circumstance shall any Agent have any duty or obligation to exercise the
judgment permitted under Section 5(b) or (c) on behalf of any such person.
7. Indemnification and Contribution.
--------------------------------
(a) The Issuer will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to which such
Agent may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto (excluding any amendments or supplements relating to
securities which are not covered by this Agreement) arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and will
reimburse each Agent for any legal or other expenses reasonably incurred by
such Agent in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however;
-----------------
that the Issuer will not be liable to such Agent in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made (i) in any of such documents in reliance upon and in conformity with
written information furnished to the Issuer by such Agent for use therein, or
(ii) in that part of the Registration Statement constituting its Statement of
Eligibility and Qualification under the Trust Indenture Act (Form T-1) of the
Trustee.
(b) Each Agent will indemnify and hold harmless the Issuer against
any losses, claims, damages or liabilities to which the Issuer may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto (excluding any amendments or supplements relating to securities which
are not covered by this Agreement), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was
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<PAGE> 12
made in reliance upon and in conformity with written information furnished
to the Issuer by such Agent for use therein, and will reimburse any legal
or other expenses reasonably incurred by the Issuer in connection with
investigating or defending any such loss, claim, damage, liability or
action.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section 7 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there has been a
final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 is
unavailable for any reason other than as specified therein, the parties
entitled to indemnification by the terms thereof shall be entitled to
contribution for liabilities and expenses, except to the extent that
contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective parties
are entitled, there shall be considered the relative benefits received by
each party from the offering of the Securities (taking into account the
portion of the proceeds of the offering realized by each), the parties'
relative knowledge and access to information concerning the matter with
respect to which the claim was asserted, the opportunity to correct and
prevent any statement or omission and any other equitable considerations
appropriate under the circumstances. The Issuer and the Agents agree that
it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the Agents were
treated as one entity for such purpose). Notwithstanding the provisions
of this subsection (d), no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the
Securities which are the subject of the action and which were distributed
to the public through it pursuant to this Agreement or upon resale of
Securities purchased by it from the Issuer exceeds the amount of any
damages which such Agent has otherwise been required to pay in respect of
the same claim or any substantially similar claim. The obligations of
each Agent in this subsection (d) to contribute are several, in the same
proportion which the amount of the Securities which are the subject of
the action and which were distributed to the the public through such Agent
pursuant to this Agreement bears to the total amount of such Securities
distributed to the public through all of the Agents pursuant to this
Agreement, and not joint.
(e) The obligations of the Issuer under this Section 7 shall be in
addition to any liability which the Issuer may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls each Agent within the meaning of the Act; and
-12-
<PAGE> 13
the obligations of each Agent under this Section 7 shall be in addition to any
liability which each Agent may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Issuer, to each officer of the
Issuer who has signed the Registration Statement and to each person, if any,
who controls the Issuer within the meaning of the Act.
8. Status of Each Agent. In soliciting offers to purchase the Securities
--------------------
from the Issuer pursuant to this Agreement and in assuming its other
obligations hereunder (other than offers to purchase pursuant to Section 11),
each Agent is acting individually and not jointly. Each Agent will make
reasonable best efforts to assist the Issuer in obtaining performance by each
purchaser whose offer to purchase Securities from the Issuer has been solicited
by such Agent and accepted by the Issuer. If the Issuer shall default on its
obligations to deliver Securities to a purchaser whose offer it has accepted,
the Issuer (i) shall hold the Agents harmless against any loss, claim or damage
arising from or as a result of such default by the Issuer, and (ii) in
particular, shall pay to the Agents any commission to which they would be
entitled in connection with such sale.
9. Survival of Certain Representations and Obligations. The respective
---------------------------------------------------
indemnities, agreements, representations, warranties and other statements of
the Issuer or its officers and of the agents set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Agent, the Issuer or any of their respective representatives, officers or
directors or any controlling person and will survive delivery of any payment
for the Securities. If this Agreement is terminated pursuant to Section 10 or
for any other reason, the Issuer shall remain responsible for the expenses to
be paid or reimbursed by it pursuant to Section 4(h) and the obligations of the
Issuer under Sections 4(d) and 4(g) and the respective obligations of the
Issuer and the Agents pursuant to Section 7 shall remain in effect. In
addition, if any such termination shall occur either (i) at a time when any
Agent shall own any of the Securities with the intention of reselling them or
(ii) after the Issuer has accepted an offer to purchase Securities and prior to
the related settlement, the obigations of the Issuer under the second sentence
of Section 4(b), under Section 4(a), 4(c), 4(e) and 4(f) and, in the case of a
termination occurring as described in (ii) above, under Sections 3(c), 6(a),
6(e) and 6(f) and under the last sentence of Section 8, shall also remain in
effect.
10. Termination. This Agreement may be terminated for any reason at any
-----------
time by the Issuer as to any Agent or, in the case of an Agent by such Agent
insofar as this Agreement relates to such Agent, upon the giving of one day's
written notice of such termination to the other parties hereto. Any settlement
with respect to Securities placed by an Agent occurring after termination of
this Agreement shall be made in accordance with the Procedures and each Agent
agrees, if requested by the Issuer, to take the steps therein provided to be
taken by such Agent in connection with such settlement.
11. Purchases as Principal. From time to time, any Agent may agree with
----------------------
the Issuer to purchase Securities from the Issuer as principal and (unless the
Issuer and such Agent may otherwise agree) such purchase shall be made in
accordance with the terms of a separate agreement ("Purchase Agreement") in the
form attached hereto as Exhibit C. A Purchase Agreement may also specify
certain provisions relating to the reoffering of such Notes by such Agent.
Whether or not the Issuer and an Agent execute and deliver an agreement in
connection with any such sale and purchase, such sale and purchase shall,
unless the Issuer and such Agent otherwise expressly agree in writing, be made
pursuant to a Purchase Agreement in the form attached hereto as Exhibit C with
such additional provisions relating to the terms of the Securities and of the
purchase and sale (and, if applicable, resale)
-13-
<PAGE> 14
thereof as shall be set forth in the Purchase Information delivered pursuant to
the Procedures, and such Agent's compensation shall, unless otherwise agreed
between the Issuer and such Agent, be the amount thereof set forth in the
Pricing Supplement.
12. Sales of Securities Denominated in a Currency other than U.S. Dollars
---------------------------------------------------------------------
or of Indexed Securities. If at any time the Issuer with any of the Agents
- ------------------------
shall determine to issue and sell Securities denominated in a currency other
than U.S. dollars, which other currency may include a currency unit, or with
respect to which an index is used to determine the amounts of payments of
principal and any premium and interest, the Issuer and any such Agent may
execute and deliver a supplement to this Agreement for the purpose of making
any appropriate additions to and modifications of the terms of this Agreement
(and the Procedures) applicable to such Securities and the offer and sale
thereof. The Agents are authorized to solicit offers to purchase Securities
with respect to which an index is used to determine the amounts of payments of
principal and any premium and interest, and the Issuer shall agree to any sales
of such Securities (whether offered on an agency or principal basis), only in a
minimum aggregate amount of $2,500,000.
13. Notices. Except as otherwise provided herein, all notices and other
-------
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to The First Boston Corporation shall be directed to it at Park Avenue
Plaza, New York, New York 10055, Attention: Mr. Joseph Fashano, to Merrill
Lynch & Co. shall be directed to it at Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Merrill Lynch World Headquarters, North Tower, 23rd Floor, World
Financial Center, New York, New York 10281-1322, Attention: MTN Product
Management, J. Patrick Hannon, phone number (212) 449-7582, fax number (212)
449-2234; to Morgan Stanley & Co. Incorporated shall be directed to it at 1221
Avenue of the Americas, New York, New York, 10020, Attention: Managing Director
Debt Syndicate, phone number (212) 246-4289, fax number (212) 764-7490, with a
copy to 1251 Avenue of the Americas, Attention: Manager, Credit Department,
phone number (212) 703-4000, fax number (212) 703-4574; and to J.P. Morgan
Securities Inc. shall be directed to it at 60 Wall Street, New York, New York
10260, Attention: , phone number , fax number ;
and notices to the Issuer shall be directed to it if by mail, to P.O. Box
10001, Dallas, Texas 75265-9000, and if sent otherwise, to 6501 Legacy Drive,
Plano, Texas 75024-3698, Attention: C.R. Lotter, Secretary; or in the case of
any party hereto, to such other address or person as such party shall specify
to each other party by a notice given in accordance with the provisions of
this Section 13. Any such notice shall take effect at the time of receipt.
14. Successors. This Agreement will inure to the benefit of and be binding
----------
upon the parties hereto, their respective successors, the officers and
directors and controlling persons referred to in Section 7 and, to the extent
provided in Section 6(f), any person who has agreed to purchase Securities from
the Issuer, and no other person will have any right or obligation hereunder.
15. Governing Law; Counterparts. This Agreement shall be governed by and
------------- ------------
construed in accordance with the laws of the State of New York. This Agreement
may be
-14-
<PAGE> 15
executed in any number of counterparts, each of which shall be deemed to be an
original, but all such executed counterparts shall together constitute one and
the same Agreement.
If the foregoing correctly sets forth our agreement, please indicate your
acceptance hereof in the space provided for that purpose below.
Very truly yours,
J.C. PENNEY COMPANY, INC.
By:
---------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of the
date first above written:
CS FIRST BOSTON CORPORATION
By:
---------------------------------
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By:
---------------------------------
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By:
---------------------------------
Name:
Title:
J.P. MORGAN SECURITIES INC.
By:
---------------------------------
Name:
Title:
-15-
<PAGE> 16
EXHIBIT A
The Issuer agrees to pay each Agent a commission equal to the following
percentage of the principal amount of Securities sold to purchasers solicited
by such Agent:
Commission Rate
(as a percentage of
Term principal amount)
---- ------------------
9 months to less than 12 months .125%
12 months to less than 18 months .150
18 months to less than 24 months .200
24 months to less than 30 months .250
30 months to less than 3 years .300
3 years to less than 4 years .350
4 years to less than 5 years .450
5 years to less than 7 years .500
7 years to less than 10 years .550
10 years to less than 20 years .600
20 years to 30 years .750
Greater than 30 years To be negotiated
at time of trade
<PAGE> 17
EXHIBIT B
ADMINISTRATIVE PROCEDURES
-------------------------
The Medium-Term Notes - Series A due from nine months to 30 years from
their issue date ("Notes"), are to be offered on a continuing basis by J. C.
Penney Company, Inc. ("Issuer"). CS First Boston, as agents (individually, an
"Agent" and collectively, the "Agents"), have each agreed to use reasonable
best efforts to solicit offers to purchase the Notes, but the Issuer reserves
the right to sell the Notes on its own behalf directly or through affiliates
and, upon notice to each Agent, to enter into agreements substantially
identical to the Agency Agreement with other agents. The Agents will not be
obligated to purchase Notes for their own account. The Notes are being sold
pursuant to an Agency Agreement, dated September 16, 1991 ("Agency Agreement"),
among the Issuer and the Agents and will be issued pursuant to an Indenture,
dated as of April 1, 1994 as supplemented by a First Supplemental Indenture,
dated as of March 15, 1983, a Second (said Indenture, and all Indentures
supplemental thereto, being hereinafter called the "Indenture"), between the
Issuer and Bank of America National Trust and Savings Association, as trustee
("Trustee"). In connection with certain procedures to be followed with respect
to the settlement of sales of Notes as set forth in this Administrative
Procedures, the Issuer has appointed Chemical Bank as its Issuing Agent. With
respect to the Notes, Chemical Bank will also act as Paying Agent and
Authenticating Agent under the Indenture and, as may be required, Calculation
Agent and Exchange Rate Agent for the Issuer. All references herein to Chemical
Bank, regardless of the capacity in which it is acting, will be to the "Paying
Agent".
The Notes will rank equally and ratably with all other unsecured and
unsubordinated indebtedness of the Issuer and will have been registered under
the Securities Act of 1933 ("Act"). For a description of the terms of the Notes
and the offering and sale thereof, see the sections entitled "Description of
Notes", "Special Provisions Relating to Foreign Currency Notes", "United States
Taxation", "Plan of Distribution of Notes" and "Glossary" in the Prospectus
Supplement relating to the Notes, dated , 1994, attached hereto and
hereinafter referred to as the "Prospectus Supplement", and the sections
entitled "Description of Securities" and "Plan of Distribution" in the
Prospectus relating to the Notes, dated , 1994, attached hereto and
hereinafter referred to as the "Prospectus". Defined terms used herein but not
defined herein shall have the meanings assigned to them in the Agency
Agreement, the Prospectus or the Prospectus Supplement.
The Notes will be represented either by Global Notes delivered to The
Depository Trust Company ("DTC") or its nominee and recorded in the book-entry
system maintained by DTC or such nominee ("Book-Entry Notes") (it being
understood that only each Global Note and not any such Book-Entry Note
represented thereby constitutes a Security under the Indenture) or by
certificates delivered to the Holders thereof or Persons designated by such
Holders ("Certified Notes"). Notes for which interest is calculated on the
basis of a fixed interest rate are referred to herein as "Fixed Rate Notes".
Notes for which interest is calculated at a rate or rates determined by
reference to an interest rate formula are referred to herein as "Floating Rate
Notes".
Notes which are issued at a price lower than the principal amount thereof
and which provide that upon redemption or acceleration of the maturity thereof
an amount less than the principal thereof shall become due and payable are
referred to herein as "Original Issue Discount Notes". For special provisions
relating to Original Issue Discount Notes and
<PAGE> 18
other Notes issued at a discount for tax purposes, see the section entitled
"United States Taxation -- Original Issue Discount" in the Prospectus
Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, the Notes
will be denominated in U.S. dollars and payments of principal of and any
premium and interest on the Notes will be amde in U.S. dollars in the manner
indicated in the Prospectus and the Prospectus Supplement. Notes denominated in
one or more currencies or currency units other than U.S. dollars are referred
to herein as "Foreign Currency Notes". For special provisions relating to
Foreign Currency Notes, see the sections entitled "Special Provisions Relating
to Foreign Currency Notes" in the Prospectus Supplement. Specific information
concerning the foreign currency or currency unit in which a particular Foreign
Currency Note is denominated, including historical exchange rates and a
description of the currency and any exchange controls, shall be contained in a
Pricing Supplement to the Prospectus Supplement reflecting the terms of such
Note.
Notes which provide that amounts payable by the Issuer in respect of
principal of or any premium or interest on the Notes shall be determined by
reference to the value, rate or price of one or more specified indices, are
referred to herein as "Indexed Notes". Specific information pertaining to the
method for determining the principal amounts payable, a historical comparison
of the value, rate or price of the specified index, indices and the face amount
of the Indexed Note and certain additional tax considerations will be described
in the applicable Pricing Supplement.
Administrative procedures and specific terms of the offering are
explained below. Part I indicates procedures applicable to all Notes; Part II
indicates specific procedures for Certificated Notes; and Part III indicates
specific procedures for Book-Entry Notes. Administrative and record-keeping
responsibilities will be handled by the Issuer. The Issuer will advise the
Agents in writing of those persons handling administrative responsibilities
with whom the Agents are to communicate regarding offers to purchase Notes and
the details of their delivery.
Except as otherwise specified, all time references herein shall be to New
York City time on the date of the event, act or notice referred to in the
particular provision.
PART I: PROCEDURES APPLICABLE TO ALL NOTES
----------------------------------
Issue Date
- ----------
Each Note will be dated the date of its authentication. Each Note will
also bear an original issue date ("Issuer Date") which, with respect to any
such Note (or portion thereof), shall mean the date of its original issuance
and shall be specified therein. The Issue Date will remain the same for all
Notes subsequently issued upon transfer, exchange or substitution of a Note,
regardless of their dates of authentication.
Price to Public
- ---------------
Except as otherwise specified in a Pricing Supplement, each Note will be
issued at 100% of principal amount.
2
<PAGE> 19
Maturities; Minimum Purchase
- ----------------------------
Each Note will mature on a date, selected by the purchaser and agreed to
by the Issuer, which will be at least nine months but not more than 30 years
after its Issue Date. The minimum aggregate amount of Notes which may be
offered to any purchaser will be $100,000 with integral multiples of $1,000 in
excess thereof.
Interest Payments
- -----------------
Interest on each interest-bearing Note will be calculated and paid in the
manner described in such Note, in the Prospectus Supplement and in the
applicable Pricing Supplement. Unless otherwise set forth therein, interest on
Fixed Rate Notes (including interest for partial periods) will be calculated on
the basis of a 360-day year of twelve 30-day months and will not accrue on the
31st day of any month. Interest on Floating Rate Notes, except as otherwise set
forth therein, will be calculated on the basis of actual days elapsed and a
year of 360 days, except that in the case of a Floating Rate Note for which the
Base Rate is the Treasury Rate, interest will be calculated on the basis of the
actual number of days in the year.
On the fifth Business Day immediately preceding each Interest Payment
Date, the Paying Agent will furnish the Issuer with the total amount of interst
payments (whether in U.S. dollars or other currencies or currency units) to be
made on such Interest Payment Date. The Paying Agent will provide monthly, to
the Issuer, a list of the principal and any premium and interest to be paid on
Notes maturing in the next succeeding month. Except with respect to Book-Entry
Notes, the Paying Agent will assume responsibility for withholding taxes on
interest paid as required by law.
Redemption/Repayment
- --------------------
If indicated in the applicable Pricing Supplement, the Notes of a
particular tenor will be subject to redemption in whole or in part (subject to
applicable minimum denominations), at the option of the Issuer on and after an
initial redemption date as set forth in the applicable Pricing Supplement and
in the applicable Note. The redemption price will be set forth in the
applicable Pricing Supplement and in the applicable Note.
If indicated in the applicated Pricing Supplement, the Notes of a
particular tenor will be subject to repayment at the option of the Holders
thereof in accordance with the terms of the Notes on a repayment date as set
forth in the applicable Pricing Supplement and in the applicable Note. The
repayment date or dates and repayment price will be set forth in the applicable
Pricing Supplement and in the applicable Note.
Procedures for Establishing the Terms of the Notes
- --------------------------------------------------
The Issuer and the Agents will discuss from time to time the rates to be
borne by the Notes that may be sold as a result of the solicitation of offers
by the Agents. Once any Agent has recorded any reasonable indication of
interest in Notes upon certain terms, and
3
<PAGE> 20
communicated with the Issuer, if the Issuer plans to accept an offer to
purchase Notes upon such terms, it will prepare a Pricing Supplement to the
Prospectus, as then amended or supplemented, reflecting the terms of such Notes
and will arrange to have copies of the Pricing Supplement filed with, or
transmitted by a means reasonably calculated to result in filing with, the
Securities and Exchange Commission ("Commission") pursuant to Rule 424 under
the Act. The Issuer will supply at least 10 copies of the Prospectus, as then
amended or supplemented, and bearing such Pricing Supplement, to the Agent who
presented the offer ("Presenting Agent"). No settlements with respect to Notes
upon such terms may occur prior to such transmitting or filing and the Agents
will not, prior to such transmitting or filing, mail confirmations to customers
who have offered to purchase Notes upon such terms. After such transmitting or
filing, sales, mailing of confirmations and settlements may occur with respect
to Notes upon such terms, subject to the provisions of "Delivery of Prospectus"
below.
If the Issuer decides to post rates and a decision has been reached to
change interest rates, the Issuer will promptly notify each Agent. Each Agent
will immediately suspend solicitation of purchases. At that time, the Agents
will recommend and the Issuer may establish rates to be so "posted". Following
establishment of posted rates and prior to the transmitting or filing described
in the preceding paragraph, the Agents may only record indications of interest
in purchasing Notes at the posted rates. Once any Agent has recorded any
indication of interest in Notes at the posted rates and communicated with the
Issuer, if the Issuer plans to accept an offer at the posted rate, it will
prepare a Pricing Supplement reflecting such posted rates and will arrange to
have copies of the Pricing Supplement, filed with, or transmitted by means
reasonably calculated to result in filing with, the Commission pursuant to Rule
424 and will supply at least 10 copies of the Prospectus, as then amended or
supplemented, and bearing such Pricing Supplement, to the Presenting Agent. No
settlements at the posted rates may occur prior to such transmitting or filing
and the Agents will not, prior to such transmitting or filing, mail
confirmations to customers who have offered to purchase Notes at the posted
rates. After such transmitting or filing, sales, mailing of confirmations and
settlements may resume, subject to the provisions of "Delivery of Prospectus"
below.
Outdated Pricing Supplements, and copies of the Prospectus to which they
are attached (other than those retained for files), will be destroyed.
Suspension of Solicitation: Amendment or Supplement
- ----------------------------------------------------
As provided in the Agency Agreement, the Issuer may instruct the Agents to
suspend solicitation of offers to purchase at any time, and upon receipt of
such instruction from the Issuer, the Agents will each immediately suspend
solicitation until such time as the issuer has advised them that solicitation
of offers to purchase may be resumed.
If the Agents receive the notice from the Issuer contemplated by Section
3(b) or 4(b) of the Agency Agreement, they will immediately suspend
solicitation and will only resume solicitation as provided in the Agency
Agreement. If the Issuer is required, pursuant to Section 4(b) of the Agency
Agreement, to prepare an amendment or supplement, it will promptly furnish each
Agent with the proposed amendment or supplement; if the Issuer decides to amend
or supplement the Registration Statement or the Prospectus relating to the
Notes, it will promptly advise each Agent and will furnish each Agent with the
proposed amendment or supplement in accordance with the terms of the Agency
Agreement. The
4
<PAGE> 21
Issuer will file such amendment or supplement with the Commission, provide the
Agents with copies of any such amendment or supplement, confirm to the Agents
that such amendment or supplement has been filed with the Commission and advise
the Agents that solicitation may be resumed.
Any such suspension shall not affect the Issuer's obligations under the
Agency Agreement; and in the event that at the time the Issuer suspends
solicitation of offers to purchase there shall be any offers already accepted
by the Issuer outstanding for settlement, the Issuer will have the sole
responsibility for fulfilling such obligations. The Issuer will in addition
promptly advise the Presenting Agent and the Paying Agent if such offers are
not to be settled and if copies of the Prospectus as in effect at the time of
the suspension may not be delivered in connection with the settlement of such
offers.
Acceptance of Offers
- --------------------
Each Agent will promptly advise the Issuer, orally or in writing, of each
reasonable offer to purchase Notes received by it. Each Agent may, in its
discretion reasonably exercised, without notice to the Issuer, reject any offer
received by it, in whole or in part. The Issuer will have the sole right to
accept offers to purchase Notes and may in its discretion reject any such
offer, in whole or in part. If the Issuer accepts or rejects an offer, in whole
or in part, the Issuer will promptly so notify the Presenting Agent.
Confirmation
- ------------
For each accepted offer, the Presenting Agent will issue a confirmation to
the purchaser, with a separate confirmation to the Issuer, setting forth the
Purchase Information (as defined under II below with respect to Certificated
Notes and III below with respect to Book-Entry Notes) and delivery and payment
instructions; provided, however, that, in the case of the confirmation issued
-----------------
to the purchaser, no confirmation shall be delivered to the purchaser prior to
the delivery of the Prospectus referred to below.
Determination of Settlement Date
- --------------------------------
The receipt of immediately available funds by the Issuer in payment for a
Note and (i) in the case of Certificated Notes, the authentication and issuance
of such Note and (ii) in the case of Book-Entry Notes, entry by the Presenting
Agent of a DTC Same-Day Funds Settlement System ("SDFS") deliver order through
DTC's Participant Terminal System to credit such Note to the account of a
Participant purchasing, or acting for the purchase of, such Note, shall, with
respect to such Note, constitute "settlement". All offers accepted by the
Issuer will be settled on the fifth Business Day next succeeding the date of
acceptance unless otherwise agreed by the purchaser and the Issuer. The
settlement date shall be specified upon receipt of an offer to purchase. No
later than 11:00 a.m., on the settlement date, the Issuer will instruct the
Paying Agent to authenticate and deliver the Notes no later than 2:15 p.m. on
the settlement date.
5
<PAGE> 22
Delivery of Prospectus
- ----------------------
A copy of the Prospectus as most recently amended or supplemented on the
date of delivery thereof (except as provided below) must be delivered by the
Presenting Agent to a purchaser prior to or together with the earlier of the
delivery of (i) the written confirmation provided for above, and (ii) any Note
purchased by such purchaser. (For this purpose, entry of an SDFS deliver order
through DTC's Participant Terminal System to credit a Note to the account of a
Participant purchasing, or acting for the purchaser of, a Note shall be deemed
to constitute delivery of such Note.) Subject to the foregoing, it is
anticipated that delivery of the Prospectus, confirmation and Notes to the
purchaser will be made simultaneously at settlement. The Issuer shall ensure
that the Presenting Agent receives copies of the Prospectus and each amendment
or supplement thereto (including appropriate Pricing Supplements) in such
quantities and within such time limits as will enable the Presenting Agent to
deliver such confirmation or Note to a purchaser as contemplated by these
procedures and in compliance with the first sentence of this paragraph. If,
since the date of acceptance of a purchaser's offer, the Prospectus shall have
been supplemented solely to reflect any sale of Notes on terms different from
those agreed to between the Issuer and such purchaser or a change in posted
rates not applicable to such purchaser, such purchaser shall not receive the
Prospectus as supplemented by such new supplement, but shall receive the
Prospectus as supplemented to reflect the terms of the Notes being purchased by
such purchaser and otherwise as most recently amended or supplemented on the
date of delivery of the Prospectus.
Authenticity of Signatures
- --------------------------
The Issuer will caused the Paying Agent to furnish the Agents from time to
time with the specimen signatures of each of the Paying Agent's officers,
employees or agents who have been authorized by the Paying Agent to
authenticate Notes, but no Agent will have any obligation or liability to the
Issuer or the Paying Agent in respect of the authenticity of the signature of
any officer, employee or agent of the Issuer or the Paying Agent on any
Certificated Note or Global Note (as defined in Part III), unless the Agent
knows or has reason to believe that such signature may not be authentic.
Business Day
- ------------
"Business Day" means any day which is not a Saturday or Sunday and is not
a day on which banking institutions are generally authorized or obligated by
law or executive order to close in The City of New York and, with respect to
LIBOR notes, a London Banking Day. "London Market Day" means any day on which
dealings in deposits in U.S. Dollars are transacted in the London interbank
market.
Paying Agent Not to Risk Funds
- ------------------------------
Nothing herein shall be deemed to require the Paying Agent to risk or
expend its own funds in connection with any payment made to the Issuer, the
Agents, DTC or any Noteholder, it being understood by all parties that payments
made by the Paying Agent to the
6
<PAGE> 23
Issuer, the Agents, DTC or any Holder of a Note shall be made only to the
extent that funds are provided to the Paying Agent for such purpose.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
------------------------------------------------
Form and Denominations
- ----------------------
The Certificated Notes shall be issued only in fully registered form in
denominations of $100,000 with integral multiples of $1,000 in excess thereof,
or, in the case of Foreign Currency Notes, in such minimum denomination, not
less than the equivalent of $100,000 with integral multiples of $1,000 in
excess thereof, and such greater denomination or denominations in excess
thereof, as shall be set forth in the applicable Pricing Supplement. However,
Notes with respect to which an index is used to determine the amounts of
payments of principal and any premium and interest shall be issued only in a
minimum aggregate amount of $2,500,000.
Transfers and Exchanges
- -----------------------
A Certificated Note may be presented for transfer or exchange at the
office of Chemical Bank, Room 234 North Building, Corporate Trust Security
Window, 55 Water Street, New York, New York 10041, or by mail to Chemical Bank
Debt Operations Department, JAF Building, P.O. Box 2862, GPO Station, New York
10016-2862 or such other place or transfer agent as the Issuer may designate
("Transfer Agent"). Certificated Notes will be exchangeable for other
Certificated Notes of any authorized denominations and of like tenor and in a
like aggregate principal amount, upon surrender of the Certificated Notes to be
exchanged at the corporate trust office of the Transfer Agent. Certificated
Notes will not be exchangeable for Book-Entry Notes.
Payment at Maturity
- -------------------
Upon presentation of each Certificated Note at Maturity, the Paying Agent
will pay the principal amount thereof, together with any premium and accrued
interest due at Maturity. Such payment will be made in immediately available
funds, provided that the Certificated Note is presented in time for the Paying
--------
Agent to make payment in such funds in accordance with its normal procedures.
The Issuer will provide the Paying Agent with funds available for immediate use
for such purpose. Certificated Notes presented at Maturity will be canceled by
the Paying Agent as provided in the Indenture. For special provisions relating
to Foreign Currency Notes, see the section entitled "Special Provisions
Relating to Foreign Currency Notes" in the Prospectus Supplement.
Details for Settlement
- ----------------------
For each offer for Certificated Notes accepted by the Issuer, the
Presenting Agent shall communicate to the Issuer no later than 11:00 a.m. on
the first Business Day after the sale date (or on the sale date if such sale is
to be settled within one business day) by telephone, telex, facsimile
transmission or other acceptable means, the following information ("Purchase
Information"):
7
<PAGE> 24
1. Exact name in which the Note or Notes are to be registered
("Registered Owner").
2. Exact address of Registered Owner and, if different, the address for
delivery, notices and payment of principal and any premium and
interest.
3. Taxpayer identification number of Registered Owner.
4. Principal amount of each Note in authorized denominations to be
delivered to registered owner.
5. In the case of Fixed Rate Notes, the interest rate of each
Note; in the case of Floating Rate Notes, the interest rate formula,
the Spread or Spread Multiplier (if any), the maximum or minimum
interest rate limitation (if any), the Calculation Agent, the
Calculation Dates, the Initial Interest Rate, the Interest Payment
Dates, the Regular Record Dates, the Index Maturity, the Interest
Determination Dates and the Interest Reset Dates, in each case, to the
extent applicable with respect to each note.
6. Stated Maturity of each Note.
7. Redemption and/or repayment provisions, if any, of each Note.
8. Trade date of each Note.
9. Settlement date (Issue Date) of each Note.
10. Presenting Agent's commission (to be paid in the form of a discount
from the proceeds remitted to the Issuer upon settlement).
11. Price.
12. Net Proceeds to Issuer.
13. Currency or currency unit in which each Note is to be denominated and
exchange rate applicable to purchase Foreign Currency Notes to be
paid for in U.S. dollars.
14. Any additional applicable terms of each Note.
The Issue Date of, and the settlement date for, Certificated Notes will be
the same. Before accepting any offer to purchase Certificated Notes to be
settled in less than
8
<PAGE> 25
three Business Days, the Issuer shall verify that the Paying Agent will have
adequate time to prepare and authenticate the Notes.
If the initial interest rate for a Floating Rate Certificated Note has not
been determined at the time that the foregoing procedure is completed, the
procedures described in the following two paragraphs shall be completed as soon
as such rate has been determined but no later than 12:00 noon, on the Business
Day before the settlement date.
Immediately after receiving the details for each offer for Certificated
Notes from the Presenting Agent and in any event no later than 12:00 noon on
the first Business Day after the sale date (or on the sale date if such sale is
to be settled within one Business Day), the Issuer will, if accepting the
offer, after recording the details and any necessary calculations, communicate
the Purchase Information by telephone, telex, facsimile transmission or other
acceptable means, to the Paying Agent. Each such instruction given by the
Issuer to the Paying Agent shall constitute a continuing representation and
warranty by the Issuer to the Paying Agent and the Agents that (i) the issuance
and delivery of such Notes have been duly and validly authorized by the Issuer
and (ii) such Notes, when completed, authenticated and delivered, shall
constitute the valid and legally binding obligation of the Issuer. The Paying
Agent will assign to and enter on each Note a transaction number.
At such time as the Issuer may determine, but in any event sufficiently in
advance of an issuance to allow the Paying Agent time to process the Notes, the
Issuer will deliver to the Paying Agent a pre-printed four-ply packet (or such
other packet as may be agreed upon between the parties) for such Certificated
Notes, which packet will contain the following documents in forms that have
been approved by the Issuer, the Agents and the Paying Agent:
1. Certificated Note with customer confirmation.
2. Stub One - For the Paying Agent.
3. Stub Two - For the Presenting Agent.
4. Stub Three - For the Issuer.
The Paying Agent will complete such Certificated Note and will
authenticate such Certificated Note and deliver it (with the confirmation) and
the Stubs One and Two to such Presenting Agent, and such Agent will acknowledge
receipt of the Note by stamping or otherwise marking Stub One and returning it
to the Paying Agent. The Paying Agent will send Stub Three to the Issuer by
first-class mail or such other means as may be agreed upon by these parties.
Settlement; Note Deliveries and Cash Payment
- --------------------------------------------
At such time as the Issuer may determine, but in any event sufficiently in
advance of an issuance to allow the Paying Agent time to process the Notes, the
Issuer will deliver to the Paying Agent a supply of duly executed Certificated
Notes with pre-printed control numbers adequate to implement the program. Upon
the receipt of appropriate documentation and instructions from the Issuer in
accordance with the applicable Officers'
9
<PAGE> 26
Certificate and verification thereof, the Paying Agent will cause the
Certificated Notes to be completed and authenticated and hold the Certified
Notes for delivery against payment.
The Paying Agent will deliver the Certified Notes, in accordance with
instructions from the Issuer, to the Presenting Agent for the benefit of the
purchaser only against receipt. The Presenting Agent will acknowledge receipt
of the Notes through a broker's receipt. Delivery of the Certified Notes by the
Paying Agent will be made only against such acknowledgement of receipt from the
Presenting Agent. Upon the Presenting Agent's determination that such Notes
have been authenticated, delivered and completed as aforesaid, the Presenting
Agent will make, or cause to be made, payment to the Issuer at such account of
the Issuer as the Issuer may specify in writing, in immediately available
funds, of an amount equal to the principal amount of such Notes, less the
applicable commission. If the Presenting Agent in any instance advances its own
funds, the Issuer shall not use any of the proceeds of such sale to acquire
securities.
The Presenting Agent will deliver the Notes (with the written confirmation
provided for above) to the purchaser thereof against payment therefor by such
purchaser in immediately available funds. Delivery of any confirmation or Note
will be made in compliance with "Delivery of Prospectus" in Part I above.
Fails
- -----
In the event that a purchaser shall fail to accept delivery of and make
payment for a Certificated Note on the settlement date, the Presenting Agent
will notify the Paying Agent and the Issuer, by telephone, confirmed in
writing. If such Certificated Note has been delivered to the Presenting Agent,
the Presenting Agent shall return such Note to the Paying Agent. If funds have
been advanced for the purchase of such Note, the Paying Agent will, immediately
upon receipt of such Note, debit the account of the Issuer for the amount so
advanced and the Paying Agent shall refund to the Presenting Agent the payment
previously made by the Presenting Agent in immediately available funds. Such
payments will be made on the settlement date, if possible, and in any event not
later than the Business Day following the settlement date. If the fail shall
have occurred for any reason other than the Presenting Agent's gross negligence
or willful misconduct, including but not limited to the failure of the
Presenting Agent to provide the Purchase Information to the Issuer or to
provide a confirmation to the purchaser, the Issuer will reimburse the
Presenting Agent on an equitable basis for its loss of the use of funds during
the period when the funds were credited to the account of the Issuer, or for
any other cost or expense; and in no event shall the Issuer be obligated to pay
any Commission, as contemplated by the Agency Agreement, with respect to any
fail.
Immediately upon receipt of the Certificated Note in respect of which the
fail occurred, the Paying Agent will make appropriate entries in its records to
reflect the fact that the Note was never issued and the Note will be canceled
and disposed of as provided in the Indenture.
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<PAGE> 27
PART III: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
----------------------------------------------
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Paying Agent will
perform the custodial, document control and administrative functions described
below, in accordance with its obligations under a Letter of Representations
("Letter") from the Issuer and the Paying Agent to DTC dated as of
, 1994, and a Medium-Term Note Certificate Agreement between the Paying Agent
and DTC dated as of , 1994, and its obligations as a participant in
DTC, including "SDFS".
Form, Denominations and Registration
- ------------------------------------
All Book-Entry Notes of the same tenor and having the same Issue Date,
will be represented initially by a single note (a "Global Note") in fully
registered form without coupons. Book-Entry Notes will represent Notes
denominated in U.S. dollars. Global Notes will be issued in denominations of
$100,000 with integral multiples of $1,000 in excess thereof. However, Notes
with respect to which an index is used to determine the amounts of payments of
principal and any premium and interest shall be issued only in a minimum
aggregate amount of $2,500,000. Each Global Note will be registered in the name
of Cede & Co., as nominee for DTC, on the Security Register maintained under
the Indenture. The beneficial owner of a Book-Entry Note (or one or more
indirect participants in DTC designated by such owner) will designate one or
more participants in DTC (with respect to such Note, the "Participants") to act
as agent or agents for such owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-entry form, in accordance with
instructions provided by such Participants, a credit balance with respect to
such Book-Entry Note in the account of such Participants. The ownership
interest of such beneficial owner in such Book-Entry Note will be recorded
through the records of such Participants or through the separate records of
such Participants and one or more indirect participants in DTC.
CUSIP Numbers
- -------------
The Issuer has arranged with the CUSIP Service Bureau of Standard & Poor's
Corporation ("CUSIP Service Bureau") for the reservation of a series of CUSIP
numbers (including tranche numbers), such series consisting of approximately
900 CUSIP numbers and relating to Global Notes representing Book-Entry Notes.
The Issuer has obtained from the CUSIP Service Bureau a written list of such
reserved CUSIP numbers and has delivered it to DTC and the Paying Agent. The
Paying Agent will assign CUSIP numbers serially to Global Notes as described
below under "Details for Settlement". DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the Paying Agent has assigned to Global
Notes. The Paying Agent will notify the Issuer at the time when fewer than 100
of the reserved CUSIP numbers remain unassigned to the Global Notes; and the
Issuer will reserve an additional 900 CUSIP numbers for assignment to Global
Notes representing Book-Entry Notes. Upon obtaining such additional CUSIP
numbers, the Issuer shall deliver a list of such additional CUSIP numbers to
DTC.
11
<PAGE> 28
Transfers and Exchanges for the Purpose of Consolidation
- --------------------------------------------------------
Transfers of a Book-Entry Note will be accomplished by book entries made
by DTC and, in turn, by Participants (and, in certain cases, one or more
indirect participants in DTC) acting on behalf of beneficial transferors and
transferees of such Book-Entry Note.
The Paying Agent may upon notice to the Issuer deliver to DTC and the
CUSIP Service Bureau at any time a written notice (a copy of which shall be
attached to the Global Note resulting from such exchange) specifying (i) the
CUSIP numbers of two or more outstanding Global Notes that represent Book-Entry
Notes of the same tenor and having the same Issue Date, and for which interest
(if any) has been paid to the same date, (ii) a date occurring at least thirty
days after such written notice is delivered and at least thirty days before the
next Interest Payment Date (if any) for such Notes, on which such Global Notes
shall be exchanged for a single replacement Global Note and (iii) a new CUSIP
number to be assigned to such replacement Global Note. Upon receipt of such a
notice, DTC will send to its Participants (including the Paying Agent) a
written notice to the effect that such exchange will occur on such date. Prior
to the specified exchange date, the Paying Agent will deliver to the CUSIP
Service Bureau a written notice setting forth such exchange date and the new
CUSIP number and stating that, as of such exchange date, the CUSIP numbers of
the Global Notes to be exchanged will no longer be valid. On the specified
exchange date, the Paying Agent will exchange such Global Notes for a single
Global Note bearing the new CUSIP number and the CUSIP numbers of the exchanged
Global Notes will, in accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
Notice of Interest Payment Dates and Regular Record Dates
- ---------------------------------------------------------
To the extent then known, on the first Business Day of March, June,
September and December of each year, the Paying Agent will deliver to the
Issuer and DTC a written list of Record Dates and Interest Payment Dates that
will occur with respect to Floating Rate Book-Entry Notes during the six-month
period beginning on such first Business Day.
Payments of Principal and Interest
- ----------------------------------
(a) Payments of Interest Only. Promptly after each Regular Record Date
-------------------------
(as defined in the Note), the Paying Agent will deliver to the Issuer and DTC a
written notice specifying by CUSIP number the amount of interest to be paid on
each Global Note on the following Interest Payment Date (other than an interest
Payment Date coinciding with Maturity) and the total of such amounts. The Issuer
will confirm with the Paying Agent the amount payable on each Global Note on
such Interest Payment Date. DTC will confirm the amount payable on each Global
Note on such Interest Payment Date by reference to the daily or weekly bond
reports published by Standard & Poor's Corporation. The Issuer will pay to the
Paying Agent the total amount of interest due on such Interest Payment Date
(other than at Maturity), and the Paying Agent will pay such amount to DTC at
the times and in the manner set forth below under "Manner of Payment".
(b) Payments at Stated Maturity. On or about the first Business Day of
---------------------------
each month, the Paying Agent will deliver to the Issuer and DTC a written list
of principal and interest to be paid on each Global Note maturing in the
following month. The Issuer, the
12
<PAGE> 29
Paying Agent and DTC will confirm the amounts of such principal and interest
payments with respect to each such Global Note on or about the fifth Business
Day preceding the Stated Maturity of such Global Note. The Issuer will pay to
the Paying Agent, as the paying agent, the principal amount of such Global
Note, together with interest due at such Stated Maturity. Upon surrender of a
Global Note, the Paying Agent will pay such amounts to DTC at the times and in
the manner set forth below under "Manner of Payment". If any Stated Maturity of
a Global Note representing Book-Entry Notes is not a Business Day, the payment
due on such day shall be made on the next succeeding Business Day and no
interest shall accrue on such payment for the period from and after such Stated
Maturity. Promptly after payment to DTC of the principal and any interest due
at the Stated Maturity of such Global Note, the Paying Agent will cancel such
Global Note and return such Global Note to the Issuer in accordance with the
terms of the Indenture.
(c) Payment upon Redemption. The Paying Agent will comply with the terms
-----------------------
of the Letter with regard to redemptions or repayments of the Book-Entry Notes.
In the case of Book-Entry Notes stated by their terms to be redeemable prior to
Stated Maturity, at least 60 calendar days before the date fixed for redemption
("Redemption Date"), the Issuer shall notify the Paying Agent of the Issuer's
election to redeem such Book-Entry Notes in whole or in part and the principal
amount of such Book-Entry Notes to be so redeemed. At least 30 calendar days
but not more than 60 calendar days prior to the Redemption Date, the Paying
Agent shall notify DTC of the Issuer's election to redeem such Book-Entry
Notes. The Paying Agent shall notify the Issuer and DTC of the CUSIP numbers of
the particular Global Notes representing such Book-Entry Notes to be redeemed
either in whole or in part. The Issuer, the Paying Agent and DTC will confirm
the amounts of such principal and any premium and interest payable with respect
to each such Book-Entry Notes on or about the fifth Business Day preceding the
Redemption Date of such Book-Entry Notes. The Issuer will pay the Paying Agent,
in accordance with the terms of the Indenture, the amount necessary to redeem
each such Book-Entry Note or the applicable portion of each such Book-Entry
Note. The Paying Agent will pay such amount to DTC at the times and in the
manner set forth herein. Promptly after payment to DTC of the amount due on the
Redemption Date for such Book-Entry Note, the Paying Agent shall cancel any
such Book-Entry Note redeemed in whole and shall deliver it to the Issuer with
an appropriate debit advice. If a Global Note is to be redeemed in part, the
Paying Agent will cancel such Global Note and issue a Global Note which shall
represent the remaining portion of such Global Note and shall bear the CUSIP
number of the canceled Global Note.
(d) Manner of Payment. The total amount of any principal and interest due
-----------------
on Global Notes on any Interest Payment Date or at Maturity shall be paid by
the Issuer to the Paying Agent in immediately available funds on such date. The
Issuer will make such payment on such Notes by wire transfer to the Paying
Agent. The Issuer will confirm instructions regarding payment in writing to the
Paying Agent. Prior to 10:00 a.m. on each date of maturity of a Book-Entry Note
or as soon as possible thereafter, the Paying Agent will pay by separate wire
transfer (using Fedwire message entry instructions in a form previously
specified by DTC) to an account at the Federal Reserve Bank of New York
previously specified by DTC in funds avaiable for immediate use by DTC, each
payment of principal (together with interest thereon) due at maturity on
Book-Entry Notes. On each Interest Payment Date, interest payment shall be made
to DTC in same day funds in accordance with existing arrangements between the
Paying Agent and DTC. Thereafter, on each such date, DTC will pay, in
accordance with its SDFS operating procedures then in effect, such amounts in
funds available for immediate use to the respective Participants in whose names
the Book-Entry
13
<PAGE> 30
Notes represented by such Global Notes are recorded in the book-entry system
maintained by DTC. NEITHER THE ISSUER NOR THE PAYING AGENT SHALL HAVE ANY
DIRECT RESPONSIBILITY OR LIABILITY FOR THE PAYMENT BY DTC TO SUCH PARTICIPANTS
OF THE PRINCIPAL OF AND ANY PREMIUM OR INTEREST ON THE BOOK-ENTRY NOTES.
(e) Withholding Taxes. The amount of any taxes required under applicable
-----------------
law to be withheld from any interest payment on a Book-Entry Note will be
determined and withheld by the Participant, indirect participant in DTC or
other person responsible for forwarding payments and materials directly to the
beneficial owner of such Note.
Details for Settlement
- ----------------------
For each offer for Book-Entry Notes accepted by the Issuer, and which are
to be represented by one Global Note, the Presenting Agent shall communicate to
the Issuer no later than 11:00 a.m. on the first Business Day after the sale
date (or on the sale date if such sale is to be settled within one Business
Day), by telephone, telex, facsimile transmission or other acceptable means,
the following information ("Purchase Information"):
1. Statement that these Book-Entry Notes will be represented by a Global
Note registered in the name of Cede & Co.
2. Exact address of Participant with respect to each Book-Entry Note and,
if different, the address for delivery, notices and payment of
principal and any premium and interest.
3. Principal amount of each Book-Entry Note.
4. Principal amount of Global Note representing all Book-Entry Notes.
5. Stated Maturity of the Notes.
6. In the case of Fixed Rate Notes, the interest rate of the Notes; in
the case of Floating Rate Notes, the interest rate formula, the Spread
or Spread Multiplier (if any), the maximum or minimum interest rate
limitation (if any), the Calculation Agent, the Calculation Dates, the
Initial Interest Rate, the Interest Payment Dates, the Regular Record
Dates, the Index Maturity, the Interest Determination Dates and the
Interest Reset Dates, in each case, to the extent applicable with
respect to the Notes.
7. Redemption and/or repayment provisions, if any, of the Notes.
8. Trade date of the Notes.
14
<PAGE> 31
9. Settlement date (Issue Date) of the Notes.
10. Presenting Agent's commission (to be paid in the form of a discount
from the proceeds remitted to the Issuer upon settlement).
11. Price.
12. Net Proceeds to Company.
13. Currency or currency unit in which the Notes are to be denominated and
exchange rate applicable to purchase Foreign Currency Notes payable
in U.S. dollars.
14. Any additional applicable terms of the Notes.
The Issue Date of, and the settlement date for, Book-Entry Notes will be
the same. Before accepting any offer to purchase Book-Entry Notes to be settled
in less than three Business Days, the Issuer shall verify that the Paying Agent
will have adequate time to prepare and authenticate the Global Note(s) which
shall represent such Book-Entry Notes.
If the initial interest rate for a Floating Rate Book-Entry has not been
determined at the time that the foregoing procedure is completed, the
procedures described in the following two paragraphs shall be completed as soon
as such rate has been determined but no later than 12:00 noon (with respect to
the next following paragraph) and 2:00 p.m. (with respect to the second
following paragraph), as the case may be, on the Business Day before the
settlement date.
Immediately after receiving the details for each offer for Book-Entry
Notes from the Presenting Agent and in any event no later than 12:00 noon on
the first Business Day after the sale date (or on the sale date if such sale is
to be settled within one Business Day), the Issuer will, if accepting the
offer, after recording the details and any necessary calculations, communicate
the Purchase Information by telephone, telex, facsimile transmission or other
acceptable means, to the Paying Agent. Each such instruction given by the
Issuer to the Paying Agent shall constitute a continuing representation and
warranty by the Issuer to the Paying Agent and the Agents that (i) the issuance
and delivery of such Global Note representing such Book-Entry Notes has been
duly and validly authorized by the Issuer and (ii) such Global Note, when
completed, authenticated and delivered, shall constitute the valid and legally
binding obligation of the Issuer.
Immediately after receiving the Purchase Information from the Issuer and
in any event no later than 2:00 p.m. on the first Business Day after the sale
date (or on the sale date if such sale is to be settled within one Business
Day), the Paying Agent will assign a CUSIP number to the Global Note
representing such Book-Entry Notes and will telephone the Issuer and advise the
Issuer of such CUSIP number and, as soon thereafter as practicable, the Issuer
shall notify the Agent of such CUSIP number. The Paying Agent will enter a
pending deposit message through DTC's Participant Terminal System, providing
the following settlement information to DTC (which shall route such information
to Standard & Poor's Corporation) and the Presenting Agent:
15
<PAGE> 32
1. The applicable Purchase information.
2. Initial Interest Payment Date for the Book-Entry Notes represented by
such Global Note, number of days by which such date succeeds the
Regular Record Date which shall be the Regular Record Date (as
defined in the Note), and, if known, the amount of interest payable
on such Interest Payment Date per $1,000 principal amount of
Book-Entry Notes.
3. Identification as either a Fixed Rate Note or a Floating Rate Note.
4. CUSIP number of the Global Note representing such Book-Entry Note(s).
5. Whether such Global Note will represent any other Book-Entry Note(s)
(to the extent known at such time).
6. Interest payment periods.
7. Numbers of the participant accounts maintained by DTC on behalf of
the Paying Agent and the Agents.
Standard & Poor's Corporation will use the information received in
the pending deposit message to include the amount of any interest payable and
certain other information regarding the related Global Note in the appropriate
daily or weekly bond report published by Standard & Poor's Corporation.
Settlement; Global Note Delivery and Cash Payment
- -------------------------------------------------
The Issuer will deliver to the Paying Agent at the commencement of
the program and from time to time thereafter a supply of duly executed Global
Notes with pre-printed control numbers adequate to implement the program. Upon
the receipt of appropriate documentation and instructions from the Issuer in
accordance with the applicable Officers' Certificate and verification thereof,
the Paying Agent will cause a Global Note to be completed and authenticated no
later than 9:00 a.m. on the Settlement Date, and hold such Global Note for
delivery against payment.
Prior to 10:00 a.m. on the Settlement Date, DTC will credit such Note
to the Paying Agent's participant account at DTC. At or prior to 2:00 p.m. on
the Settlement Date, the Paying Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to (i) debit such Global Note
to the Paying Agent's participant account and credit such Global Note to the
Presenting Agent's participant account and (ii) debit the Presenting Agent's
settlement account and credit the Paying Agent's settlement account for an
amount equal to the price of such Global Note less such Agent's commission (in
accordance with SDFS operating procedures in effect on the Settlement Date).
The entry of such a deliver order shall constitute a representation and
warranty by the Paying Agent to DTC that (i) the Global Note representing such
Book-Entry Note(s) has been executed, delivered and authenticated and (ii) the
Paying Agent is holding such Global Note pursuant to the Medium-Term Note
Certificate Agreement between the Paying Agent and DTC.
16
<PAGE> 33
Simultaneously with the giving of such instructions by the Paying Agent,
the Presenting Agent will enter an SDFS deliver order through DTC's participant
Terminal System instructing DTC (i) to debit such Global Note to the Paying
Agent's participant account and credit the underlying Book-Entry Notes to the
Participant accounts of the Participants with respect to such Global Note and
(ii) to debit the settlement accounts of such Participants with respect to the
underlying Book-Entry Notes and credit the settlement account of such Paying
Agent for an amount equal to the price of such Global Note (in accordance with
SDFS operating procedures in effect on the Settlement Date).
Transfers of funds will take place on or prior to 4:45 p.m. on the
Settlement Date, subject to extension in accordance with any extension of
Fedwire closing deadlines and in the other events specified in the SDFS
operating procedures in effect on the Settlement Date.
The Paying Agent, upon confirming receipt of such funds, will wire
transfer the amount transferred to the Paying Agent, in funds available for
immediate use, for the account of J.C. Penney Company, Inc., to account no.
at Chemical Bank, New York, New York (ABA No. ).
Fails
- -----
If settlement of a Book-Entry Note is rescheduled or canceled, the
Issuer shall notify the Paying Agent, and upon receipt of such notice, the
Paying Agent will deliver to DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than 2:00 p.m., on the Business
Day immediately preceding the scheduled Settlement Date.
If the Paying Agent has not entered an SDFS deliver order with respect to
a Book-Entry Note, then upon written request (which may be evidenced by
telecopy transmission) of the Issuer, the Paying Agent shall deliver to DTC,
through DTC's Participant Terminal System, as soon as practicable, but no later
than 2:00 p.m. on any Business Day, a withdrawal message instructing DTC to
debit such Book-Entry Note to the Paying Agent's participant account. DTC will
process the withdrawal message, provided that the Paying Agent's participant
account contains a principal amount of the Global Note representing such
Book-Entry Note that is at least equal to the principal amount to be debited.
If withdrawal messages are processed with respect to all the Book-Entry Notes
represented by a Global Note, the Paying Agent will mark such Global Note
"canceled", make appropriate entries in the Paying Agent's records and send
such canceled Global Note to the Issuer. The CUSIP number assigned to such
Global Note shall, in accordance with CUSIP Service Bureau procedures, be
canceled and not immediatly reassigned. If withdrawal mesaages are processed
with respect to one or more, but not all, of the Book-Entry Notes represented
by a Global Note, the Paying Agent will exchange such Global Note for two
Global Notes, one of which shall represent such Book-Entry Notes and shall be
canceled immediately after issuance and the other of which shall represent the
remaining Book-Entry Notes previously represented by the surrendered Global
Note and shall bear the CUSIP number of the surrendered Global Note.
If the purchase price for any Book-Entry Note is not timely paid to the
Participants with respect to such Note by the beneficial purchaser thereof (or
a person, including an indirect participant in DTC, acting on behalf of such
purchaser), such Participants
17
<PAGE> 34
and, in turn, the Presenting Agent may enter an SDFS deliver order through
DTC's Participant Terminal System debiting such Book-Entry Note to such Agent's
participant account and crediting such Book-Entry Note to the participant
account of the Paying Agent and shall notify the Paying Agent and the Issuer
thereof. Thereafter, the Paying Agent, (i) will immediately notify the Issuer,
once the Paying Agent has confirmed that such Book-Entry Note has been credited
to its participant account, and the Issuer shall immediately transfer by
Fedwire (in immediately available funds) to the Presenting Agent an amount
equal to the price of such Book-Entry Note which was previously sent by wire
transfer to the account of the Issuer maintained at Chemical Bank, and (ii) the
Paying Agent will deliver the withdrawal message and take the related actions
described in the preceding paragraph. Such debits and credits will be made on
the Settlement Date, if possible, and in any event not later than 5:00 p.m. on
the following Business Day. If the fail shall have occurred for any reason
other than the Presenting Agent's gross negligence or willful misconduct,
including but not limited to failure of the Presenting Agent to provide the
Purchase Information to the Issuer or to provide a confirmation to the
purchaser, the Issuer will reimburse the Presenting Agent on an equitable basis
for its loss of the use of funds during the period when the funds were credited
to the account of the Issuer, or for any other cost or expense; and in no event
shall the Issuer be obligated to pay any Commission, as contemplated by the
Agency Agreement, with respect to any fail.
Notwithstanding the foregoing, upon any failure to settle with respect to
a Book-Entry Note, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle with
respect to one or more, but not all, of the Book-Entry Notes to have been
represented by a Global Note, the Paying Agent will provide for the
authentication and issuance of a Global Note representing the other Book-Entry
Notes to have been represented by such Global Note and will make appropriate
entries in its records.
18
<PAGE> 35
EXHIBIT C
PURCHASE AGREEMENT
, 1994
J.C. Penney Company, Inc.
6501 Legacy Drive
Plano, Texas 75024-3698
Attention: Treasurer
The undersigned agrees to purchase the following principal amount of the
Securities described in the Agency Agreement dated ___________, 1994 (the
"Agency Agreement"):
Principal Amount $______________________
Interest Rate ________%
Maturity Date _________________, 19__
Discount ________% of Principal Amount
Price to be paid to
Issuer ((in immediately
available funds)) $______________________
((in New York Clearing
House (next day) funds)
Commission to Agent $______________________
Settlement Date _______________________
Except as otherwise expressly provided herein, all terms used herein which
are defined in the Agency Agreement shall have the same meanings as in the
Agency Agreement. The terms Agent and Agents, as used in the Agency Agreement,
shall be deemed to refer only to the undersigned for purposes of this
Agreement.
This Agreement incorporates by reference all of the provisions of the
Agency Agreement (including any Amendment entered into pursuant thereto by the
Issuer and the undersigned Agent, to the extent applicable), except provisions
of the Agency Agreement relating specifically to solicitation by the Agents, as
agents, and except that (i) the phrase "jointly with any other indemnifying
party similarly notified" in Section 7(c) and the last sentence of Section 7(d)
shall not be applicable; and (ii) the term "this Agreement", as used in Section
7(d) of the Agency Agreement, shall be deemed to refer to this Agreement (and
not the Agency Agreement) except that in the fifth sentence such term shall be
deemed to refer to the Agency Agreement. You and we agree to perform, to the
extent applicable, our respective duties and obligations specifically provided
to be performed by each of us in the Procedures.
<PAGE> 36
Our obligation to purchase Securities hereunder is subject to the accuracy
on the above Settlement Date of your representations and warranties contained in
Section 2 of the Agency Agreement (it being understood that such
representations and warranties shall be deemed to be made as of the date of
this Purchase Agreement and references to the Registration Statement and
Prospectus shall be deemed to relate to the Registration Statement and the
Prospectus as amended as of the date hereof and as of such Settlement Date) and
to your performance and observance of all covenants and agreements contained in
Sections 4 and 6 thereof. Our obligation hereunder is also subject to the
following conditions:
(a) the satisfaction, at such Settlement Date, of each of the conditions
set forth in subsections (a) and (b) and (d) through (g) of Section 5 of the
Agency Agreement (it being understood that each document so required to be
delivered shall be dated such Settlement Date and that each such condition and
the statements contained in each such document that relate to the Registration
Statement or the Prospectus shall be deemed to relate to the Registration
Statement or the Prospectus, as the case may be, as amended or supplemented as
of the date hereof and at the time of settlement on such Settlement Date and
except that the opinion described in Section 5(d) shall be modified so as to
state that the Securities being sold on such Settlement Date, when delivered
against payment therefor as provided in this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Issuer enforceable in accordance with their
terms, subject only to the exceptions set forth in clause (iii) of Section 5(d)
of the Agency Agreement, and will conform to the description thereof contained
in the Prospectus as amended or supplemented at such Settlement Date;
(b) there shall not have occurred any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Issuer and its subsidiaries, taken as a whole, which, in our
judgment, materially impairs the investment quality of the Securities; and
(c) (such other conditions as may be agreed upon among the parties.)
In further consideration of our agreement hereunder, you agree that
between the date hereof and the above Settlement Date, you will not offer or
sell, or enter into any agreement to sell, any debt securities of the Issuer in
the United States, other than sales of Securities, borrowings under your
revolving credit agreements and lines of credit, the private placement of
securities and issuances of your commercial paper.
If for any reason our purchase of the above Securities is not
consummated, you shall remain responsible for the reasonable expenses to be
paid or reimbursed by you pursuant to Section 4 of the Agency Agreement and the
respective obligations of you and the undersigned pursuant to Section 7 shall
remain in effect. If for any reason the purchase by the undersigned of the
above Securities is not consummated other than because of a default by the
undersigned or a failure to satisfy a condition set forth in clause (iii), (iv)
or (v) of paragraph (b) above, you shall reimburse us, severally, for all
out-of-pocket expenses reasonably incurred by us in connection with the
offering of the above Securities and not otherwise required to be reimbursed
pursuant to Section 4 of the Agency Agreement.
2
<PAGE> 37
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
executed counterparts shall together constitute one and the same Agreement.
{INSERT NAME OF PURCHASER}
By:
------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
J. C. Penney Company, Inc.
By:
--------------------------------
Name:
Title:
3
<PAGE> 1
================================================================================
J. C. PENNEY COMPANY, INC.
AND
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
Trustee
____________
INDENTURE
Dated as of April 1, 1994
____________
================================================================================
<PAGE> 2
J. C. PENNEY COMPANY, INC.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of April 1, 1994
<TABLE>
<CAPTION>
Reflected in Indenture
----------------------------------------------
Section Page
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<S> <C> <C>
TIA
Section 310(a)(1) . . . . . . . . . . . 8.09 54
(a)(2) . . . . . . . . . . . 8.09 54
(a)(3) . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . 8.08 53
Section 311(a) . . . . . . . . . . . 8.13 57
(b) . . . . . . . . . . . 8.13 57
Section 312(a) . . . . . . . . . . . 6.01 39
. . . . . . . . . . . 6.02(a) 40
(b) . . . . . . . . . . . 6.02(b) 40
(c) . . . . . . . . . . . 6.02(b) 40
Section 313(a) . . . . . . . . . . . 6.03 40
(b) . . . . . . . . . . . 6.03 40
(c) . . . . . . . . . . . 6.03 40
(d) . . . . . . . . . . . 6.03 40
Section 314(a) . . . . . . . . . . . 6.04 40
(a)(4) . . . . . . . . . . . 5.06 36
(b) . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . 1.02 11
(c)(2) . . . . . . . . . . . 1.02 11
(c)(3) . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . 1.02 11
Section 315(a) . . . . . . . . . . . 8.01 50
(b) . . . . . . . . . . . 8.02 51
(c) . . . . . . . . . . . 8.01 50
(d) . . . . . . . . . . . 8.01 50
(e) . . . . . . . . . . . 7.14 50
Section 316(a)(1)(A) . . . . . . . . . . . 7.12 48
(a)(1)(B) . . . . . . . . . . . 7.02 43
. . . . . . . . . . . 7.13 49
(a)(2) . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . 7.08 47
Section 317(a)(1) . . . . . . . . . . . 7.03 44
(a)(2) . . . . . . . . . . . 7.04 45
(b) . . . . . . . . . . . 5.03 34
Section 318(a) . . . . . . . . . . . 1.07 14
- --------------------
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of this Indenture.
<PAGE> 3
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
<S> <C>
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request and Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Currency or Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Currency Indexed Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollars or $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Funded Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indexed Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Non-Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
</TABLE>
__________________________________
*This Table of Contents is not part of the Indenture.
-i-
<PAGE> 4
<TABLE>
<S> <C>
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Principal Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Principal Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Principal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Sale and Lease-Back Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Securityholder or Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Senior Funded Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Stockholders' Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Subordinated Funded Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act or TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.02. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.03. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.04. Acts of Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.05. Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.06. Notices to Securityholders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.07. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.08. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.09. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.10. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.11. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.12. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.13. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
</TABLE>
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<TABLE>
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ARTICLE TWO
ISSUANCE OF SECURITIES IN SERIES; FORMS;
OTHER PROVISIONS RELATING TO SECURITIES
SECTION 2.01. Amount Unlimited; Issuance in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.02. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.03. Forms of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.04. Currency; Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.05. Date, Execution, Authentication and Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.06. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.07. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.08 Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.09. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.10. Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.11. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.12. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.13. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.14. Form of Legend for Global Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.15. Payment to be in Proper Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01. Authentication and Delivery of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.02. Documents Required for Issuance of Series of Securities . . . . . . . . . . . . . . . . . . . . 28
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Right of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.02. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.03. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.04. Selection of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.05. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.06. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.07. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.08. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.02. Maintenance of Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.03. Money for Security Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . 34
</TABLE>
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SECTION 5.04. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.05. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.06. Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.07. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.08. Limitations on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 5.09. Limitations on Sale and Lease-Back Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.10. Waiver of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE SIX
SECURITYHOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Company to Furnish Trustee Name and Addresses of
Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.02. Preservation of Information; Communications to Securityholders . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.03. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.04. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . 44
SECTION 7.04. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.05. Trustee May Enforce Claims without Possession of Securities . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.06. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.07. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.08. Unconditional Right of Securityholders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.09. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 7.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.11. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.12. Control by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 7.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 7.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 7.15. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.02. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.03. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . 52
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SECTION 8.05. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.06. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.07. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.08. Disqualified; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.09. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.10. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.11. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 8.13. Preferential Collection of Claims against Company . . . . . . . . . . . . . . . . . . . . . 57
SECTION 8.14. Authenticating Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
SECTION 9.01. Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 9.02. Call of Meetings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 9.03. Call of Meetings by Company or Securityholders . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 9.04. Qualifications for Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 9.05. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 9.06. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 9.07. Action by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without Consent of Securityholders . . . . . . . . . . . . . . . . 61
SECTION 10.02. Supplemental Indentures with Consent of Securityholders . . . . . . . . . . . . . . . . . . 62
SECTION 10.03. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 10.04. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 10.05. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 10.06. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 64
SECTION 10.07. Notice of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 11.01. Company May Consolidate, etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . 65
SECTION 11.02. Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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ARTICLE TWELVE
SATISFACTION AND DISCHARGE
SECTION 12.01. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 12.02. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.01. Exemption from Individual Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.01. Company's Option to Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . 68
SECTION 14.02. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 14.03. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 14.04. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 14.05. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 14.06. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE FIFTEEN
MISCELLANEOUS
SECTION 15.01. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
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<PAGE> 9
THIS INDENTURE is entered into as of April 1, 1994, between J. C.
PENNEY COMPANY, INC., a Delaware corporation (hereinafter called the
"Company"), having its principal executive office located at 6501 Legacy Drive,
Plano, Texas 75024-3698 and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, organized and existing as a national banking association under the
laws of the United States of America (hereinafter called the "Trustee"), having
its corporate trust office in the City of Los Angeles, State of California.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"). The Securities are unlimited as to principal amount, may bear
such rates of interest, mature at such time or times, be issued in one or more
series and have such other provisions as may hereafter be established under
this Indenture. All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the holders thereof, the Company and the Trustee mutually
covenant and agree, for the equal and proportionate benefit of the respective
holders from time to time of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) all references in this instrument to designated
"Articles", "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Indenture;
<PAGE> 10
(2) 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;
(3) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(4) 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; and
(5) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting practices.
Certain terms, used principally in Article Eight, are defined in that
Article.
"Act" when used with respect to any Securityholder has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person that may be appointed as
Authenticating Agent in accordance with Section 8.14 to authenticate Securities
of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Whenever successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any day that is a
Business Day in the place of publication.
"Bankruptcy Code" means Title 11 of the United States Code.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
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"Board Resolution" means a copy of one or more resolutions, certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, delivered to the Trustee.
"Business Day" means each day which is neither a Saturday, Sunday nor
other day on which banking institutions in the pertinent Place of Payment are
authorized or obligated by law or executive order to remain closed.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the
Board, a Vice Chairman of the Board, a President or a Vice President, and by a
Treasurer, an Assistant Treasurer, a Controller, an Assistant Controller, a
Secretary, or an Assistant Secretary, and delivered to the Trustee.
"Covenant Defeasance" has the meaning specified in Section 14.03.
"Currency" or "Money", with respect to any payment, deposit or other
transfer in respect of the principal of or any premium or interest on any
Security, means the unit or units of legal tender for the payment of public and
private debts (or any composite thereof) in which such payment, deposit or
other transfer is required to be made by or pursuant to the terms hereof and,
with respect to any other payment, deposit or transfer pursuant to or
contemplated by the terms hereof, means Dollars.
"Currency Indexed Note" means any Security with the amount of
principal payments determined by reference to an index Currency.
"Defaulted" means, when used with respect to any series of Securities,
a series of Securities with respect to which an Event of Default shall have
occurred and be continuing, but only if, in the case of the Events of Default
referred to in Section 7.01(1), (2), (3), (4), (5) and (6), such Event of
Default has occurred with respect to Securities of such series, and only if, in
the case of an Event of Default referred to in Section 7.01(7), the written
notice referred to in Section 7.01(7) has been given by the Trustee or by the
Holders of at least 25% in Principal Amount of the Outstanding Securities of
such series of Securities.
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"Defaulted Interest" has the meaning specified in Section 2.09.
"Defeasance" has the meaning specified in Section 14.02.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the clearing agency registered under the Exchange Act specified for
that purpose, with respect to the Securities of such series. If at any time
there is more than one such Person, "Depository" shall mean, with respect to
any Securities, the qualifying entity which has been appointed with respect to
such Securities.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Funded Indebtedness" of a corporation means the principal of (a) all
indebtedness created, incurred or assumed by such corporation (including the
Securities in the case of the Company) which by its terms is not payable on
demand and which matures by its terms, or which by its terms such corporation
has the right at its option to renew or extend to a date, more than one year
after the date of determination, whether outstanding on the date of execution
of this Indenture or thereafter created, incurred or assumed, and which is (i)
for money borrowed or (ii) evidenced by a note or similar instrument given in
connection with the acquisition of any business, properties or assets,
including securities, (b) any indebtedness of others of the kinds described in
the preceding clause (a) for the payment of which such corporation is
responsible or liable as guarantor or otherwise and (c) amendments, renewals
and refundings of any such indebtedness; provided, however, that such term
shall not include any obligations under leases or any guarantees of obligations
of others under leases. It is understood that for the purposes of this
definition the term "principal" when used at any date with respect to any
indebtedness shall mean the amount of principal of such indebtedness that could
be declared due and payable on that date pursuant to the terms of such
indebtedness.
"Global Security" means a Security bearing the legend required by
Section 2.14 evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee and registered in the name of such
Depository or nominee.
"Indenture" means this instrument as originally executed and 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,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act
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<PAGE> 13
that are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall also include
the terms of particular series of Securities established as contemplated by
Section 2.01.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"Interest Payment Date" when used with respect to any Security means
the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"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 herein or in such Security provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Non-Restricted Subsidiary" means any Subsidiary except a Restricted
Subsidiary.
"Notice of Default" means a written notice of the kind specified in
Section 7.01(5) or 7.01(7).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, any Vice Chairman of the Board, President or Vice President of the
Company, and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel who may
(except as otherwise expressly provided in this Indenture) be counsel for the
Company.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for an amount less than the principal face amount
thereof to be declared due and payable upon acceleration pursuant to Section
7.02.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, other than:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
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<PAGE> 14
(b) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust, or set aside
and segregated in trust by the Company (if the Company shall act as
its own Paying Agent), for the Holders of such Securities, provided
that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c) Securities as to which the Company has effected
Defeasance pursuant to Section 14.02; and
(d) Securities which have been paid pursuant to Section
2.08 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;
provided, however, that in determining whether the Holders of the requisite
Principal Amount of Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or are present
at a meeting of Securityholders for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes
shall be equal to the amount of the principal thereof that pursuant to the
terms of such Original Issue Discount Security would be declared (or shall have
been declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 7.02 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture.
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Securities on
behalf of the Company.
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<PAGE> 15
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including without
limitation the rate or rates of interest (or formula for determining the rate
or rates of interest), if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and/or interest on the Securities of that series are payable, 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.
"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 2.08 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.
"Principal Amount" means, when used with respect to any Security, the
amount of principal of such Security that could then be declared due and
payable pursuant to Section 7.02 if such Security were then a Defaulted
Security.
"Principal Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be
administered.
"Principal Property" means all real property and tangible personal
property owned by the Company or a Restricted Subsidiary constituting a part of
any store, warehouse or distribution center located within one of the 50 states
of the United States or the District of Columbia, exclusive of motor vehicles,
mobile materials-handling equipment and other rolling stock, cash registers and
other point of sale recording devices and related equipment, and data
processing and other office equipment; provided, however, that such term shall
not include any such property constituting a part of any such store, warehouse
or distribution center unless the net book value of all real property
(including leasehold improvements) and store fixtures constituting a part of
such store, warehouse or distribution center exceeds 0.25% of Stockholders'
Equity.
"Redemption Date" when used with respect to any Security to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
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<PAGE> 16
"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.
"Regular Record Date" for interest payable on a Security on any
Interest Payment Date on the Securities of any series means the close of
business on the date specified as such pursuant to this Indenture.
"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
president, any vice president, any assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, 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 or of a
Restricted Subsidiary which the Company shall, by an Officers' Certificate,
have designated as a Restricted Subsidiary and the designation of which as a
Restricted Subsidiary shall not have been canceled by an Officers' Certificate.
Any such designation or cancellation of such designation may be made more than
once with respect to any Subsidiary; provided, however, that no Subsidiary
which has previously been a Restricted Subsidiary shall be redesignated a
Restricted Subsidiary if during any period following cancellation of its
previous designation as a Restricted Subsidiary such Subsidiary shall have
entered into a Sale and Lease-Back Transaction which would have been prohibited
under Section 5.09(a) had such Subsidiary been a Restricted Subsidiary at the
time of such Transaction.
"Sale and Lease-Back Transaction" of a corporation means any
arrangement whereby (a) property has been or is to be sold or transferred by
such corporation to any Person with the intention on the part of such
corporation of taking back a lease of such property pursuant to which the
rental payments are calculated to amortize the purchase price of such property
substantially over the useful life of such property and (b) such property is in
fact so leased by such corporation.
"Security" has the meaning stated in the first recital of this
Indenture and more particularly means any unsecured evidence of indebtedness
authenticated and delivered under this Indenture; provided, however, that if at
any time there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
-8-
<PAGE> 17
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Securityholder" or "Holder" when used with respect to any Security
means the Person in whose name such Security is registered in the Security
Register.
"Security Register" has the meaning specified in Section 2.07.
"Security Registrar" means the Person who keeps the Security Register
specified in Section 2.07.
"Senior Funded Indebtedness" of the Company means any Funded
Indebtedness of the Company unless in any instrument or instruments evidencing
or securing such Funded Indebtedness or pursuant to which the same is
outstanding, or in any amendment, renewal, extension or refunding of such
Funded Indebtedness, it is provided that such Funded Indebtedness is
subordinate in right of payment to the Securities (a) in the event of any
dissolution or winding-up or total or partial liquidation or reorganization of
the Company, whether voluntary or involuntary, or any bankruptcy, insolvency,
receivership or similar proceedings relative to the Company, (b) in the event
that any Subordinated Funded Indebtedness of the Company is declared due and
payable before its expressed maturity because of the occurrence of an event of
default with respect to such Subordinated Funded Indebtedness and (c) in the
event of any default in the payment of principal (including any required
prepayments or amortization) of or interest on any Senior Funded Indebtedness
of the Company. "Senior Funded Indebtedness" of a Restricted Subsidiary means
any Funded Indebtedness of such Restricted Subsidiary and the aggregate
preference on involuntary liquidation of any class of stock of such Restricted
Subsidiary ranking, either as to payment of dividends or distribution of
assets, prior to any other class of stock of such Restricted Subsidiary.
"Special Record Date" for the payment of any Defaulted Interest means
the date fixed by the Trustee pursuant to Section 2.09.
"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.
"Stockholders' Equity" means the sum, as at the close of a monthly
accounting period (selected by the Company) ending within 65 days next
preceding the date of determination, of (a) the aggregate of capital, capital
stock, capital surplus, capital in excess of par value of stock, reinvested
earnings, earned surplus and net income retained for use in the business
(however the foregoing may be designated), after deducting the cost of shares
of capital stock of the Company held in its treasury, of the Company and
consolidated Subsidiaries, determined in accordance with generally accepted
accounting practices applied
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<PAGE> 18
on the basis used in reports from time to time to stockholders of the Company,
plus (b) the amount reflected in such determination as deferred tax effects.
"Subordinated Funded Indebtedness" of the Company means Funded
Indebtedness of the Company which is not Senior Funded Indebtedness.
"Subsidiary" means (a) any corporation of which the Company, directly
or indirectly, owns more than 50% of the outstanding stock, which at the time
shall have by the terms thereof ordinary voting power to elect directors 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, or (b) any such corporation of
which such percentage of shares of outstanding stock of the character described
in the foregoing clause (a) shall at the time be owned, directly or indirectly,
by the Company and one or more Subsidiaries as defined in the foregoing clause
(a) or by one or more such Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities 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" shall mean each such Person and as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" means securities which are (1) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged, or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, provided that the payment of such obligations is unconditionally
--------
guaranteed as a full faith and credit obligation by the United States of
America. The term "U.S. Government Obligations" shall also include depository
receipts issued by a bank or trust company as custodian and evidencing
ownership by the holders of such depository receipts of future payments of
interest or principal, or both, on U.S. Government Obligations, as defined
above, held by such custodian, provided that except as required by law, no
--------
deduction may be made by the custodian from the amount payable to the holder of
any such depository receipt from the amount received by the custodian in
respect of any such payment of interest or principal.
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SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents or any of them is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for the Officer's
Certificate required by Section 5.06) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 1.03. 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
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<PAGE> 20
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 1.04. Acts of Securityholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given or taken by Securityholders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Securityholders
in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Securityholders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 8.01) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
Without limiting the generality of this Section 1.04, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depository or
its nominee that is a Holder of a Global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
or pursuant to this Indenture to be made, given or taken by Holders, and a
Depository or its nominee that is a Holder of a Global Security may provide its
proxy or proxies to the beneficial owners of interests in any such Global
Security through such Depository's standing instructions and customary
practices.
(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 acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a Person acting in a capacity other than such Person's
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of the authority of the Person executing the same. 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.
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<PAGE> 21
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind 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.
(e) The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any series entitled to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action, provided or permitted by this Indenture to be given or
taken by Holders of Securities of such series. With regard to any record date
set pursuant to this paragraph, the Holders of Outstanding Securities of the
relevant series on such record date (or their duly appointed agents), and only
such Persons, shall be entitled to give or take the relevant action, whether or
not such Holders remain Holders after such record date. With regard to any
action that may be given or taken hereunder only by Holders of a requisite
Principal Amount of Outstanding Securities of any series (or their duly
appointed agents) and for which a record date is set pursuant to this
paragraph, the Company may, at its option, set an expiration date after which
no such action purported to be given or taken by any Holder shall be effective
hereunder unless given or taken on or prior to such expiration date by Holders
of the requisite Principal Amount of Outstanding Securities of such series on
such record date (or their duly appointed agents). On or prior to any
expiration date set pursuant to this paragraph, the Company may, on one or more
occasions at its option, extend such date to any later date. Notwithstanding
the foregoing, the Company shall not set a record date for, and the provisions
of this paragraph shall not apply with respect to, any action to be given or
taken by Holders pursuant to Section 7.01, 7.02 or 7.12.
Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the Principal Amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such Principal Amount.
SECTION 1.05. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Securityholders 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 Securityholder 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 Principal
Corporate Trust Office, or
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<PAGE> 22
(2) the Company by the Trustee or by any Securityholder
shall be sufficient for every purpose hereunder (except as provided in
Section 7.01(5) and (7)) if in writing and mailed, first-class,
postage prepaid, to the Company addressed to the attention of its
Treasurer at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Securityholders; Waiver.
Where this Indenture provides for notice to Securityholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage prepaid, to
each Securityholder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Securityholders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular
Securityholder shall affect the sufficiency of such notice with respect to
other Securityholders. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided.
In case, by reason of the suspension of publication of any Authorized
Newspaper or the suspension of regular mail service, or by reason of any other
cause, it shall be impractical to make publication of any notice in an
Authorized Newspaper or Authorized Newspapers or to give such notice by mail as
required by this Indenture, then such method of publication or notification as
shall be made with the approval of the Trustee shall constitute a sufficient
publication or 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 Securityholders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the TIA which is required to be included in this Indenture by any
of the provisions of the TIA, such required provision of the TIA shall control.
If any provision of this Indenture modifies or excludes any provision of the
TIA that may be so modified or excluded, the provision of the TIA shall be
deemed to apply to this Indenture as so modified or shall be excluded, as the
case may be.
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<PAGE> 23
SECTION 1.08. 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 1.09. 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 1.10. Separability Clause.
In case any provision in this Indenture or in any of 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 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Securityholders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.12. Legal Holidays.
In any case where the date of any Interest Payment Date or Redemption
Date or the Stated Maturity of any Security or any date on which any Defaulted
Interest is proposed to be paid or the last day on which a Securityholder has
the right to convert or exchange his Security at a particular conversion or
exchange price shall not be a Business Day, then (notwithstanding any other
provision of the Securities or this Indenture, other than a provision in any
Security that specifically states that such provision shall apply in lieu of
this Section) payment of the principal of (and premium, if any) or interest on,
or conversion or exchange of, such Security need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the nominal date of any such Interest Payment Date or Redemption
Date or Stated Maturity or on such date on which Defaulted Interest is proposed
to be paid or on such last day for conversion or exchange, and no interest
shall accrue for the period from and after any such nominal date.
SECTION 1.13. Governing Law.
This Indenture and the Securities shall be construed in accordance
with and governed by the internal laws (and not the law of conflicts) of the
State of New York applicable to agreements made or instruments entered into
and, in each case, performed in said state.
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<PAGE> 24
ARTICLE TWO
ISSUANCE OF SECURITIES IN SERIES; FORMS;
OTHER PROVISIONS RELATING TO SECURITIES
SECTION 2.01. Amount Unlimited; Issuance in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities issued hereunder may be issued in one or more series.
The Securities of each series may bear such designations, which may or may not
include the term "Security", and may have such terms, respectively (including,
without limitation, additional covenants and changes in or eliminations of
covenants set forth in this Indenture), as shall be approved prior to the
authentication thereof by or pursuant to a Board Resolution; provided, however,
that no Securities of any series shall be senior in right of payment to any
Securities of any other series and the Securities of each series shall rank
equally and pari passu with all other unsecured and unsubordinated debt of the
Company.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and,
subject to Section 3.02, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of any
other series);
(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 or transfer of, or in exchange for, or in
lieu of, other Securities of such series pursuant to Section 2.06,
2.07, 2.08, 10.06 or 4.08 and except for any Securities which,
pursuant to Section 2.05 are deemed never to have been authenticated
and delivered hereunder);
(3) the Person to whom any interest on a Security 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;
(4) the date or dates, or the method or methods, if any,
by which such date or dates shall be determined, on which the
principal of such Securities is payable;
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<PAGE> 25
(5) the rate or rates at which any Securities of the
series shall bear interest, if any, or the method or methods, if any,
by which such rate or rates are to be determined, the date or dates,
if any, from which such interest shall accrue or the method or
methods, if any, by which such date or dates are to be determined, the
Interest Payment Dates, if any, on which such interest shall be
payable and the Regular Record Date, if any, for the interest payable
on any Interest Payment Date, and the basis upon which interest shall
be calculated if other than that of a 360-day year of twelve 30-day
months;
(6) the place or places where the principal of (and
premium, if any) and interest on Securities of the series shall be
payable, any Securities of the series may be surrendered for
registration of transfer or exchange and notices and demands to or
upon the Company with respect to the Securities of the series and this
Indenture may be served;
(7) whether any of such Securities are to be redeemable
at the option of the Company and, if so, the period or periods within
which, the price or prices at which and the terms and conditions upon
which any Securities of the series may be redeemed, in whole or in
part, at the option of the Company, and, if other than by a Board
Resolution, the manner in which any election by the Company to redeem
the Securities shall be evidenced;
(8) whether the Company is obligated to redeem, purchase
or repay any Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of the Holder thereof and, if
so, the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series
shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation and any provisions for the remarketing of any
Securities of the series so redeemed or purchased;
(9) the denominations in which any Securities of the
series shall be issuable if other than denominations of $1,000 and any
integral multiple thereof;
(10) whether the amount of payments of principal of or any
premium or interest on any Securities of the series may be determined
with reference to an index, formula or other method (which index,
formula or method or methods may be based, without limitation, on one
or more Currencies, commodities, equity indices or other indices), and
if so, the terms and conditions upon which and the manner in which
such amounts shall be determined and paid or payable;
(11) if other than the currency of the United States of
America, the currency, currencies or currency units in which the
principal of or any premium or interest on any Securities of the
series shall be payable and the manner of determining the equivalent
thereof in the currency of the United States of America
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<PAGE> 26
for any purpose, including for purposes of the definition of
"Outstanding" in Section 1.01;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or currency
units other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which the
principal of or any premium or interest on such Securities as to which
such election is made shall be payable, the periods within which and
the terms and conditions upon which such election is to be made and
the amount so payable (or the manner in which such amount shall be
determined);
(13) if other than the entire principal amount thereof,
the portion of the principal amount of any Securities of the series
which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 7.02 or the method by which such
portion is to be determined;
(14) if the principal amount payable at the Stated
Maturity of any Securities of the series will not be determinable as
of any one or more dates prior to the Stated Maturity, the amount
which shall be deemed to be the principal amount of such Securities as
of any such date for any purpose thereunder or hereunder, including
the principal amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be deemed to be
Outstanding as of any date prior to the Stated Maturity (or, in any
such case, the manner in which such amount deemed to be the principal
amount shall be determined);
(15) if applicable, that the Securities of the series, in
whole or any specified part, shall be defeasible pursuant to Section
14.02 or Section 14.03 or both such Sections and, if other than by a
Board Resolution, the manner in which any election by the Company to
defease such Securities shall be evidenced;
(16) if there is more than one Trustee, the identity of
the Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to such
Securities;
(17) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to any
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(18) whether the Securities of the series shall be issued
in whole or in part in the form of one or more Global Securities and,
if so, (a) the Depository with respect to such Global Security or
Securities, (b) the form of any legend or legends
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<PAGE> 27
which shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 2.14, and (c) the circumstances
under which any such Global Security may be exchanged for Securities
registered in the name of, and any transfer of such Global Security
may be registered to, a Person other than such Depository or its
nominee, if other than as set forth in Section 2.07;
(19) if any Securities of the series are to be issuable
upon the exercise of warrants, this shall be so established and (if
established by Board Resolution) so set forth, as well as the time,
manner and place for such Securities to be authenticated and
delivered;
(20) if less than all of the Holders of Securities or any
series of Securities may consent on behalf of all of such Holders to
the postponement of any interest payment as permitted pursuant to
Section 316(a)(2) of the TIA, such lesser percentage; and
(21) any other terms of any Securities of the series which
the Company may establish in accordance with the terms of this
Indenture.
All Securities of any one series shall be substantially identical
except as to currency of payments due thereunder, denomination and the rate or
rates of interest, if any, and Maturity, the date from which interest, if any,
shall accrue and except as may otherwise be provided by the Company in or
pursuant to the Board Resolution and set forth in the Officers' Certificate or
in any indenture or indentures supplemental hereto pertaining to such series of
Securities. All Securities of any one series need not be issued at the same
time and, unless otherwise so provided by the Company, a series may be reopened
for issuances of additional Securities of such series or to establish
additional terms of such series of Securities, provided that such additional
terms do not have a material adverse effect on the interests of the Holders of
Securities of such Series.
SECTION 2.02. Forms Generally.
The form of each series of Securities shall be substantially the form
for such series approved by or pursuant to such Board Resolution, and each
Security of such series shall be in substantially the form so approved;
provided, however, that a Board Resolution authorizing the issuance of
Securities may elect to treat as a single series such Securities as those
commonly known as medium-term notes, which may be issued from time to time in
one or more approved forms with particular Securities of the series having
financial terms determined pursuant to such Board Resolution at or about the
time of their issuance, and in such case the form for any particular Security
of such series and for any Security issued in exchange or transfer of all or
part of such particular Security shall be whichever of the approved forms for
such series was authorized for such particular Security. Any Securities may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
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<PAGE> 28
securities exchange on which such Securities may be listed, or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of such Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
Each definitive Security shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may
be produced in any other manner, all as determined by the officers executing
such Security, as evidenced by their execution of such Security.
SECTION 2.03. Forms of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be substantially in
either of the following forms:
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_____________________________,
as Trustee
By __________________________
Authorized Officer
(FORM OF ALTERNATE CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_____________________________,
as Trustee
By __________________________
(Authenticating Agent)
By __________________________
Authorized Officer
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SECTION 2.04. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on the Securities of any series shall be
payable in Dollars. Unless otherwise provided with respect to a series of
Securities by or pursuant to the Board Resolution authorizing such series, the
Securities of each series denominated in Dollars shall be issuable as a
registered Security without coupons in the denomination of $1,000 or any
integral multiple thereof. Securities not denominated in Dollars shall be
issuable in such denominations as are established with respect to such
Securities in or pursuant to this Indenture.
SECTION 2.05. Date, Execution, Authentication and Delivery.
Except as otherwise provided with respect to a series of Securities by
or pursuant to the Board Resolution authorizing such series, the Securities of
all series shall be dated the dates of their respective dates of
authentication.
Except as otherwise provided with respect to a series of Securities by
or pursuant to the Board Resolution authorizing such series, the Securities of
all series shall be executed on behalf of the Company by its Chairman of the
Board, one of its Vice Chairmen of the Board, its President or one of its Vice
Presidents and attested by its Secretary or one of its Assistant Secretaries.
The signatures of any or all of these officers on the Securities may be manual
or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in one of the forms provided for
herein manually executed by the Trustee or on its behalf as provided in Section
8.14, and such certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.12, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
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SECTION 2.06. 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 may be printed, lithographed, typewritten,
mimeographed or otherwise produced in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
Except in the case of temporary Securities in global form, which can
be exchanged in accordance with the provisions thereof, if temporary Securities
of any series are issued, the Company will cause definitive Securities of that
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 at any agency of
the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series, 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 and tenor and date of maturity and of
authorized denominations. 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 and tenor.
SECTION 2.07. Registration, Registration of Transfer and Exchange.
The Company shall keep or cause to be kept a register or registers
(hereinafter sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and the registration of transfers of
Securities. Any such register shall be in written form or in any other form
capable of being converted into written form within a reasonable time. At all
reasonable times the information contained in such register or registers shall
be available for inspection by the Trustee at the office or agency to be
maintained by the Company as provided in Section 5.02.
Upon surrender for registration of transfer of any Security of any
series at any office or agency of the Company in any Place of Payment for such
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees and in
authorized denominations, one or more new Securities of the same series and
date of maturity and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for a like aggregate principal amount of other Securities of the same series,
in authorized denominations and date of maturity and tenor, upon surrender of
the Securities to be exchanged at
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any such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Securityholder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or 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 (if other than the
Company) 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 2.06, 4.08, or 10.06 not involving any transfer.
The Company may but shall not be required (i) to issue, register the
transfer of or exchange any Securities of a particular series during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities of such series selected for redemption under
Section 4.04 and ending at the close of business on the day of such mailing,
(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 issue, register the transfer of or exchange
any Security that, in accordance with its terms, has been surrendered for
payment at the option of the Holder, except the portion, if any, of such
Security not to be so paid.
Each Global Security authenticated under this Indenture shall be
registered in the name of the Depository designated for such Global Security or
a nominee thereof and delivered to such Depository or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
Any exchange of a Global Security for other Securities may be made in
whole or in part, and all Securities issued in exchange for a Global Security
or any portion thereof shall be registered in such names as the Depository for
such Global Security shall direct.
Notwithstanding any other provision in this Indenture, no Global
Security may be transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depository for such Global
Security or any nominee thereof, and no such transfer may be registered, unless
(1) such Depository (A) notifies the Company that
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it is unwilling or unable to continue as Depository for such Global Security or
(B) ceases to be a clearing agency registered under the Exchange Act, (2) the
Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so transferable, registrable and exchangeable, and such
transfers shall be registrable, or (3) there shall have occurred and be
continuing an Event of Default with respect to the Securities evidenced by such
Global Security. Notwithstanding any other provision in this Indenture, a
Global Security to which the restriction set forth in the preceding sentence
shall have ceased to apply may be transferred only to, and may be registered
and exchanged for Securities registered only in the name or names of, such
Person or Persons as the Depository for such Global Security shall have
directed and no transfer thereof other than such a transfer may be registered.
Every Security authenticated and delivered upon registration of
transfer, or in exchange for or in lieu, of a Global Security to which the
restriction set forth in the first sentence of the preceding paragraph shall
apply, whether pursuant to this Section, Sections 2.06, 2.08, 4.08 or 10.06 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security unless such Security is registered in the name of a Person
other than the Depository for such Global Security or a nominee thereof.
SECTION 2.08 Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee, or if the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and (ii) there is delivered to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Security, a new Security of
the same series, date of maturity and principal amount and of like tenor,
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or
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stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of the same series duly issued hereunder.
The provisions of this Section as amended or supplemented pursuant to
this Indenture with respect to particular Securities or generally, shall be
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.
SECTION 2.09. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided with respect to a series of Securities by
or pursuant to the Board Resolution authorizing such series, interest on each
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 Payment Date.
Except as otherwise provided with respect to a series of Securities by
or pursuant to the Board Resolution authorizing such series, all interest on
each Security which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered Holder on the relevant Regular
Record Date by virtue of 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 Clause (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Person in whose name the Security of such
series (or a Predecessor Security) is registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such 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 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 nor 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-
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class, postage prepaid, to each holder of a Security of such series in
respect of which such Defaulted Interest is payable at such Holder's
address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a
similar notice to be published at least once in an Authorized
Newspaper in each Place of Payment, but such publication shall not be
a condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series in respect of which such Defaulted Interest
is payable (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 applicable requirements of any securities
exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, and
except as otherwise provided with respect to a series of Securities by
or pursuant to the Board Resolution authorizing such series, each
Security delivered under this Indenture upon registration of transfer
of, or in exchange for, or in lieu of, any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 2.10. Place of Payment.
The principal and the Redemption Price of, and interest, if any, on,
each Security shall be payable at the agency or agencies maintained by the
Company for such purposes at each Place of Payment which shall be designated by
the Company by written notice to the Trustee; provided, however, that at the
option of the Company payment of interest may be made by check mailed by first
class mail to the address of the Person entitled thereto at such address as
shall appear in the Security Register.
SECTION 2.11. Persons Deemed Owners.
Prior to due presentment for registration of transfer of any Security,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name any Security is registered as the absolute owner of
such Security for the purpose of receiving payment of principal of (and
premium, if any), and (subject to Section 2.09) interest, if any, on, such
Security and for all other purposes whatsoever, whether or not
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such Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
No Person entitled to any beneficial interest in any Global Security
held on its behalf by a Depository or its nominee shall, as such, have any
rights under this Indenture with respect to such Global Security, and such
Depository or its nominee may be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global Security for
all purposes whatsoever. None of the Company, the Trustee, any Paying Agent or
the Security Registrar will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 2.12. Cancellation.
Except as otherwise provided with respect to a series of Securities by
or pursuant to the Board Resolution authorizing such series, each Security
surrendered for payment, registration of transfer, conversion, exchange,
redemption or for credit against any sinking fund payment shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and any such
Security, as well as Securities surrendered directly to the Trustee for any
such purpose, shall be promptly canceled 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 may deliver to the Trustee (or any other Person for delivery to
the Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold and all Securities so delivered shall
be promptly canceled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held
by the Trustee shall be disposed of as directed by a Company Order.
SECTION 2.13. Computation of Interest.
Except as otherwise specified as contemplated by Section 2.01 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.
SECTION 2.14. Form of Legend for Global Securities.
Every Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. This Security is exchangeable for
Securities
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registered in the name of a Person other than the Depository or its
nominee only in the limited circumstances described in the Indenture
and no transfer of this Security (other than a transfer of this
Security as a whole by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee
of the Depository) may be registered except in such limited
circumstances.
SECTION 2.15. Payment to be in Proper Currency.
In the case of any Securities of any series denominated in any
Currency other than Dollars, except as otherwise provided therein, the
obligation of the Company to make any payment of principal, premium or interest
thereon shall not be discharged or satisfied by any tender by the Company, or
recovery by the Trustee, in any currency other than such Currency, except to
the extent that such tender or recovery shall result in the Trustee timely
holding the full amount of such Currency then due and payable. If any such
tender or recovery is in a currency other than the denominated Currency, the
Trustee may take such actions as it considers appropriate to exchange such
currency for the denominated 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 such Currency
then due and payable, and in no circumstances shall the Trustee be liable
therefor except in the case of its negligence or willful misconduct.
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01. Authentication and Delivery of Securities.
Securities may be authenticated and delivered under this Indenture as
permitted by the provisions of Sections 2.06, 2.07, 2.08, 3.02, 4.08 and 10.06.
SECTION 3.02. Documents Required for Issuance of Series of Securities.
At any time, or from time to time after the execution and delivery of
this Indenture, Securities may be executed by the Company and delivered to the
Trustee for authentication upon original issue, and shall be authenticated by
the Trustee and delivered by it as provided in the Company Order referred to
below, upon receipt by the Trustee of the following:
(a) a Company Order,
(b) a Board Resolution authorizing the execution,
authentication and delivery of Securities, and specifying the series,
maturity or (if Securities of such
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series are of serial maturities) maturities, and principal amount of
such Securities to be authenticated and delivered,
(c) in case the Securities to be authenticated and
delivered are of a series none of the Securities of which has been
previously authenticated by the Trustee, the Board Resolution by or
pursuant to which the terms and the form of the Securities of such
series shall have been approved,
(d) either (i) a certificate or other official document
evidencing the due authorization, approval or consent of any
governmental body or bodies at the time having jurisdiction in the
premises, together with an Opinion of Counsel that the Trustee is
entitled to rely thereon and that the authorization, approval or
consent of no other governmental body is required, or (ii) an Opinion
of Counsel that no authorization, approval or consent of any
governmental body is required,
(e) an Opinion of Counsel that all instruments furnished
the Trustee conform to the requirements of this Indenture and
constitute sufficient authority hereunder for the Trustee to
authenticate and deliver the Securities then applied for; that all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of such Securities have been complied with
and the Company is duly entitled to the authentication and delivery of
such Securities in accordance with the provisions of this Indenture;
that all laws and requirements with respect to the execution and
delivery by the Company of such Securities have been complied with;
that the Company has corporate power to issue such Securities and has
duly taken all necessary corporate action for those purposes; that
such Securities, when issued, will be the valid, legal and binding
obligations of the Company; and that such Securities, when issued,
will be entitled to the benefits of this Indenture, and
(f) an Officers' Certificate stating that the Company is
not in default under this Indenture and that the issuance of the
additional Securities applied for will not result in any breach of any
of the terms, conditions or provisions of, or constitute a default
under, the Company's certificate of incorporation or by-laws or any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company is a party or by which it is bound, or any order of
any court or administrative agency entered in any proceeding to which
the Company is a party or by which it may be bound or to which it may
be subject; and that all conditions precedent provided for in this
Indenture relating to the authentication and delivery of such
Securities have been complied with.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before
the time of issuance of the first Security of such series. After
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any such first delivery, any separate request by the Company that the Trustee
authenticate Securities of such series for original issue will be deemed to be
a certification by the Company that all conditions precedent provided for in
this Indenture relating to authentication and delivery of such Securities
continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be
taken.
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Right of Redemption.
With respect to any series of Securities, the Company may reserve the
right to redeem and pay prior to Stated Maturity all or any part of such
Securities at such time or times and from time to time as may be permitted or
required by the terms of the Securities of such series.
SECTION 4.02. Applicability of Article.
Redemption of all or any part of the Securities of any series at the
election of the Company or otherwise, as permitted or required by the terms of
the Securities of such series, shall be made in accordance with such terms and
this Article.
SECTION 4.03. Election to Redeem; Notice to Trustee.
The election of the Company to redeem all or any part of the
Securities of any series pursuant to the terms of the Securities of such series
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of less than all the Securities 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 in its
sole discretion), notify the Trustee of such Redemption Date and of the
principal amount of Securities of such series to be redeemed.
SECTION 4.04. Selection of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities of such series to be
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redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Company, or, if the Company shall so designate, by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
a method which shall be fair and appropriate in accordance with methods
generally used at the time of selection by fiduciaries in similar circumstances
and which may provide for the selection for redemption of portions of the
principal of Securities of such series of a denomination larger than the
authorized minimum denomination of the Securities of such series. The portions
of the principal of Securities so selected for partial redemption shall be
equal to such minimum denomination or an integral multiple thereof.
Unless the Company shall have designated the Trustee to select the
Securities to be redeemed, the Company shall promptly notify the Trustee by an
Officers' Certificate of the Securities selected for redemption and, in the
case of any Security selected for partial redemption, the principal amount
thereof to be redeemed, and the Trustee may conclusively rely upon such
Officers' Certificate in connection with the selection of such Securities for
redemption. If the Trustee is designated to select the Securities to be
redeemed, the Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption.
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 of such Securities which has been or is to be
redeemed.
SECTION 4.05. Notice of Redemption.
Except as otherwise provided with respect to a series of Securities by
or pursuant to the Board Resolution authorizing such series, notice of
redemption shall be given by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date, to the Holder of
each Security to be redeemed, at such Holder's address appearing in the
Security Register.
Any notice that is mailed to the Holder of any Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of like
tenor of any series are to be redeemed, the identification (and, in
the case of partial redemption, the
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respective principal amounts) of the Securities of such series to be
redeemed from the Holders to whom the notice is given,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be redeemed,
and, if applicable, that interest thereon, if any, shall cease to
accrue on and after said date,
(5) if applicable, the current conversion or exchange
price and the date on which the right to convert or exchange such
Securities or portions thereof into shares of stock or other
securities into which they are convertible or exchangeable will
expire,
(6) the place or places where such Securities maturing
after the Redemption Date, are to be surrendered for payment of the
Redemption Price and any accrued interest pertaining thereto, and
(7) if such be the case, that such Securities are to be
redeemed through operation of a mandatory or optional sinking fund.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, on Company Request, by the
Trustee in the name and at the expense of the Company.
SECTION 4.06. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 5.03) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) any interest on all the Securities or
portions thereof which are to be redeemed on that date.
SECTION 4.07. 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 on such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of such Securities for
redemption in accordance with such notice, such Securities shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date. Installments of interest whose Stated Maturity is on or prior
to the Redemption Date shall be payable to the Holders of such Securities, or
one or more Predecessor Securities, registered as such at the close of business
on the relevant Regular Record Dates according to their terms and the
provisions of Section 2.09, except as otherwise provided in this Indenture with
respect to such Securities.
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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 specified by the
terms of such Security.
SECTION 4.08. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at an agency of the Company in a Place of Payment (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, of the same
series and date of maturity and of like tenor, of any authorized denominations
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Global Security is so surrendered, such new Security so
issued shall be a new Global Security in a denomination equal to the unredeemed
portion of the principal of the Global Security so surrendered.
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest, if any, on the Securities in accordance with the
terms of the Securities and this Indenture.
SECTION 5.02. Maintenance of Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange or conversion 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 notice to
the Trustee of the location, and of any change in the location, of 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 Principal Corporate Trust Office of the Trustee and during the continuance
of such failure on the Company's part, the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and
demands.
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The Company may also from time to time designate one or more other
offices or agencies where the Securities 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 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 5.03. Money for Security Payments to Be Held in Trust.
(a) The Company agrees
(1) if the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before
each due date of the principal of (and premium, if any) or interest,
if any, 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, if any, 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; and
(2) whenever the Company shall have one or more Paying Agents
for any series of Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest, if
any, so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
(b) 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, if any, 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, if any on the Securities of that series; and
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(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent for payment in
respect of the Securities of that series.
(c) 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.
(d) Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper
in each Place of Payment, 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 5.04. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon it or upon its income, profits or
property, and (2) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon its property; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 5.05. Maintenance of Properties.
The Company will cause all its properties used or useful in the
conduct of its business to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may
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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 its properties no longer deemed useful in
the conduct of the business of the Company.
SECTION 5.06. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company, an Officers' Certificate stating, as to
each signer thereof (one of which must be the principal executive, financial or
accounting officer of the Company), that
(1) a review of the activities of the Company during such
year and of its performance under this Indenture has been made under
his or her supervision, and
(2) to the best of his or her knowledge, based on such
review, the Company has fulfilled all its obligations under this
Indenture throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to him or her and the nature and status thereof.
SECTION 5.07. Corporate Existence.
Subject to Article Eleven, the Company will do, or cause to be done,
all things necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 5.08. Limitations on Liens.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, issue, assume or guarantee any notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed (herein referred to as
"indebtedness") secured by any mortgage, security interest, pledge or lien
(herein referred to as "mortgage") of or upon any Principal Property, or shares
of capital stock or evidences of indebtedness for borrowed money issued by any
Restricted Subsidiary and owned by the Company or any Restricted Subsidiary,
whether owned at the date of this Indenture or thereafter acquired, without
making effective provision, and the Company in each case will make or cause to
be made effective provision, whereby the Principal Amount of all of the
Securities from time to time Outstanding shall be secured by such mortgage
equally and ratably with any and all other indebtedness thereby secured, so
long as such indebtedness shall be so secured; provided, however, that the
foregoing restriction shall not apply to indebtedness secured by any of the
following:
(1) mortgages on any property existing at the time of
acquisition thereof;
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(2) mortgages on property of a corporation existing at
the time such corporation is merged into or consolidated with the
Company or a Restricted Subsidiary or at the time of a sale, lease or
other disposition of the properties of such corporation (or a division
thereof) as an entirety or substantially as an entirety to the Company
or a Restricted Subsidiary, provided that such mortgage as a result of
such merger, consolidation, sale, lease or other disposition is not
extended to property owned by the Company or such Restricted
Subsidiary immediately prior thereto;
(3) mortgages on property of a corporation existing at
the time such corporation becomes a Restricted Subsidiary;
(4) mortgages securing indebtedness of a Restricted
Subsidiary to the Company or to another Restricted Subsidiary;
(5) mortgages on property to secure all or part of the
cost of acquiring, substantially repairing or altering, constructing,
developing or substantially improving such property, or to secure
indebtedness incurred to provide funds for any such purpose or for
reimbursement of funds previously expended for any such purpose,
provided the commitment of the creditor to extend the credit secured
by any such mortgage shall have been obtained not later than twelve
months after the later of (a) the completion of the acquisition,
substantial repair or alteration, construction, development or
substantial improvement of such property or (b) the placing in
operation of such property or of such property as so substantially
repaired or altered, constructed, developed or substantially improved;
(6) mortgages securing indebtedness payable on demand or
not more than one year after the date as of which the determination is
made (excluding any indebtedness renewable or extendable at the option
of the debtor for a period or periods ending more than one year after
the date as of which such determination is made), which indebtedness
in accordance with generally accepted accounting practices would be
included among current liabilities; or
(7) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
mortgage referred to in the foregoing clauses (1) to (6), inclusive;
provided, however, that the principal amount of indebtedness secured
thereby and not otherwise authorized by said clauses (1) to (6),
inclusive, shall not exceed the principal amount of indebtedness, plus
any premium or fee payable in connection with any such extension,
renewal or replacement, so secured at the time of such extension,
renewal or replacement.
(b) Notwithstanding the provisions of Section 5.08(a), the Company
or any Restricted Subsidiary may issue, assume or guarantee indebtedness
secured by mortgages which would otherwise be subject to the restrictions of
Section 5.08(a) in an aggregate
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amount which, together with all attributable debt outstanding pursuant to
Section 5.09(b), all Senior Funded Indebtedness issued, assumed or guaranteed
by any Restricted Subsidiary and all indebtedness outstanding pursuant to this
Section 5.08(b), does not exceed 5% of Stockholders' Equity.
SECTION 5.09. Limitations on Sale and Lease-Back Transactions.
(a) The Company will not, nor will it permit any Restricted
Subsidiary to, enter into any Sale and Lease-Back Transaction with respect to
any Principal Property (except for a transaction providing for a lease for a
term, including any renewal thereof, of not more than three years and except
for a transaction between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries), if the commitment by or on behalf of the purchaser is
obtained more than twelve months after the later of (i) the completion of the
acquisition, substantial repair or alteration, construction, development or
substantial improvement of such Principal Property or (ii) the placing in
operation of such Principal Property or of such Principal Property as so
substantially repaired or altered, constructed, developed or substantially
improved, unless either (x) the Company or such Restricted Subsidiary would be
entitled pursuant to Section 5.08(a) to issue, assume or guarantee debt secured
by a mortgage on such Principal Property or (y) the Company shall apply or
cause to be applied, in the case of a sale or transfer for cash, an amount
equal to the net proceeds thereof (but not in excess of the net book value of
such Principal Property at the date of such sale or transfer) and, in the case
of a sale or transfer otherwise than for cash, an amount equal to the fair
value (as determined by the Board of Directors) of the Principal Property so
leased to the retirement, within 180 days after the effective date of such Sale
and Lease-Back Transaction, of Securities or other Senior Funded Indebtedness
of the Company or a Restricted Subsidiary; provided, however, that any such
retirement of Securities shall be in accordance with Article Four and any other
terms and provisions of this Indenture and the Securities applicable to
optional redemption of Securities and provided, further, that the amount to be
applied to such retirement of Securities or other Senior Funded Indebtedness
shall be reduced by an amount equal to the sum of (A) an amount equal to the
applicable Redemption Price with respect to Securities delivered within 180
days after the effective date of such Sale and Lease-Back Transaction to the
Trustee for retirement and cancellation and (B) the principal amount, plus any
premium or fee paid in connection with any redemption in accordance with the
terms, of other Senior Funded Indebtedness voluntarily retired by the Company
within such 180-day period, excluding in each case retirements pursuant to
mandatory sinking fund or prepayment provisions and payments at maturity. It
is understood that retirement of Securities pursuant to this Section shall not
be deemed to be a redemption subject to any limitation contained in this
Indenture or the terms of such Securities with respect to such Securities on
the right to redeem such Securities from, or in anticipation of, moneys
borrowed at an interest cost less than a specified rate per annum.
(b) Notwithstanding the provisions of Section 5.09(a), the
Company or any Restricted Subsidiary may enter into a Sale and Lease-Back
Transaction which would
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otherwise be subject to the restrictions of Section 5.09(a) so as to create an
aggregate amount of attributable debt, as hereinafter defined, which, together
with all indebtedness outstanding pursuant to Section 5.08(b), all Senior
Funded Indebtedness issued, assumed or guaranteed by any Restricted Subsidiary
and all attributable debt outstanding pursuant to this Section 5.09(b), does
not exceed 5% of Stockholders' Equity. "Attributable debt" in respect of any
Sale and Lease-Back Transaction means, as of the time of the determination, the
lesser of (i) the sale price of the Principal Property so leased multiplied by
a fraction the numerator of which is the remaining portion of the base term of
the lease included in such transaction and the denominator of which is the base
term of such lease, and (ii) the total obligation (discounted to present value
at the highest rate of interest specified by the terms of any series of
Securities then Outstanding compounded semiannually) of the lessee for rental
payments (other than amounts required to be paid on account of property taxes
as well as maintenance, repairs, insurance, water rates and other items which
do not constitute payments for property rights) during the remaining portion of
the base term of the lease included in such transaction.
SECTION 5.10. Waiver of Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 5.04, 5.05, 5.08 and 5.09,
inclusive, with respect to the Securities of any series, if before or after the
time for such compliance the Holders of a majority (unless, with respect to any
series of Securities, a requirement greater than a majority is specified for
the purpose of this Section by or pursuant to the Board Resolution authorizing
such series, in which case the greater requirement so specified) in Principal
Amount of the Securities of such series at the time Outstanding shall either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE SIX
SECURITYHOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Company to Furnish Trustee Name and Addresses of
Securityholders.
The Company will furnish or cause to be furnished to the Trustee,
semiannually, not more than 15 days after each June 15 and December 15 in each
year beginning after the first issue of Securities under this Indenture, and at
such other times as the Trustee may request in writing, within 30 days after
receipt by the Company of any such request, a list in such form as the Trustee
may reasonably require of the names and addresses of the Holders of Securities
of each series as of a date not more than 15 days prior to the time
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such information is furnished; provided, however, that in case and so long as
the Trustee is the Security Registrar, no such list shall be required to be
furnished.
SECTION 6.02. Preservation of Information; Communications to
Securityholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities
contained in the most recent list furnished to the Trustee as provided in
Section 6.01 and the names and addresses of Holders of Securities received by
the Trustee in its capacity as Security Registrar, if so acting. The Trustee
may destroy any list furnished to it as provided in Section 6.01 upon receipt
of a new list so furnished.
(b) Every Holder of the Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in
accordance with Section 312 of the Trust Indenture Act, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request
made under Section 312 of the Trust Indenture Act.
SECTION 6.03. Reports by Trustee.
The term "reporting date", as used in this Section, shall be February
1, commencing with February 1, of the year following the first issue of any
Securities under this Indenture. Within 60 days after the reporting date in
each year, or at any other times as may be required by the Trust Indenture Act,
the Trustee shall transmit by mail to all Securityholders, as their names and
addresses appear in the Security Register, such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act dated as of such reporting date or at any other times as may be
required by the Trust Indenture Act.
A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with each securities exchange upon
which Securities are listed, and also with the Commission. The Company will
notify the Trustee when Securities are listed on any securities exchange.
SECTION 6.04. Reports by Company.
The Company will file with the Trustee and the Commission and transmit
to Holders, such information, documents and other reports as may be required
pursuant to the Trust Indenture Act at the times and in the manner required by
the Trust Indenture Act.
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ARTICLE SEVEN
REMEDIES
SECTION 7.01. 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 the same becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in making any mandatory or optional sinking
fund payment on any Security of that series when the same becomes due
and payable, and continuance of such default for a period of 30 days;
or
(3) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity,
except any Maturity occurring by reason of a call for redemption
through a mandatory or optional sinking fund; or
(4) default in the performance, or breach, of any
covenant of the Company contained in Section 7.03; or
(5) default in the performance, or breach, of any
covenant of the Company contained in Section 5.01, 5.03(a)(1) or (2),
and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in Principal Amount of the Securities then
Outstanding which were issued as part of the same series as any
Security or Securities with respect to which such default occurred, 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
(6) any event specified as an "Event of Default" pursuant
to Section 2.01 or in any supplemental indenture relating to, or in
the terms of, any Securities; or
(7) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit
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of a series of one or more Securities other than that series), and
continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in Principal Amount of the Outstanding Securities of that
series of Securities, 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
(8) the entry of an order for relief in respect of any
petition filed against the Company under the Bankruptcy Code, or the
entry of a decree or order by a court having competent jurisdiction in
the premises in respect of any petition filed or action taken against
the Company looking to reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any
other present or future Federal or State statute, law or regulation,
resulting in the appointment of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the
Company or of any substantial part of its property, or resulting in
the winding-up or liquidation of its affairs, all without the consent
or acquiescence of the Company, and the continuance of any such decree
or order is unstayed and in effect for a period of 60 consecutive
days; or
(9) the filing of a petition for relief under the
Bankruptcy Code by the Company, or the consent, acquiescence or taking
of any action by the Company in support of a petition filed by or
against it looking to reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any
other present or future Federal or State statute, law or regulation,
or the appointment, with the consent of the Company, of any receiver,
liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 7.01 with respect to Securities of any series, a record date shall
automatically and without any other action by any Person be set for the purpose
of determining the Holders of Outstanding Securities of such series entitled to
join in such Notice of Default, which record date shall be the close of
business on the day the Trustee receives such Notice of Default. The Holders
of Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
Notice of Default, whether or not such Holders remain Holders after such record
date; provided that, unless such Notice of Default shall have become effective
--------
by virtue of Holders of the requisite Principal Amount of Outstanding
Securities of such series on such record date (or their duly appointed agents)
having joined therein on or prior to the 90th day after such
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record date, such Notice of Default shall automatically and without any action
by any Person be canceled and of no further effect.
SECTION 7.02. 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, and in every such case, the
Trustee or the Holders of not less than 25% (unless a different percentage with
respect to any series of Securities is specified for the purpose of this
paragraph by or pursuant to the Board Resolution authorizing such series, in
which case the percentage specified) in Principal Amount of the Outstanding
Securities of a Defaulted series of Securities may declare so much of the
principal of all of the Securities of such series as may, in accordance with
the terms thereof, be declared to be due and payable upon the occurrence and
continuation of an Event of Default to be immediately due and payable, by a
notice in writing to the Company (and to the Trustee if given by
Securityholders of a Defaulted series of Securities), and upon any such
declaration such principal (or specified portion thereof), together with
interest accrued thereon, shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
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 (unless, with respect to any
series of Securities, a requirement greater than a majority is specified for
the purpose of this paragraph by or pursuant to the Board Resolution
authorizing such series, in which case the greater requirement so specified) in
Principal Amount of the Outstanding Securities of such Defaulted series, by
written notice to the Company and the Trustee, may rescind and annul, as to
such series, such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue installments of interest on all
the Securities of such Defaulted series,
(B) the principal of (and premium, if any, on)
any Securities of such Defaulted series which have become due
otherwise than by such declaration of acceleration, and
interest thereon after the date such principal became due at
the rate or rates specified by the terms of such Securities,
(C) to the extent that payment of such interest
is legally enforceable, interest upon overdue interest at the
rate or rates specified by the terms of the Securities of such
Defaulted series, and
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(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 by virtue of which such series
of Securities is Defaulted, other than the non-payment of the
principal of Securities of that series which have become due solely by
such acceleration, have been cured or waived as provided in Section
7.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or any
rescission and annulment of any such declaration, pursuant to this Section 7.02
with respect to Securities of any series, a record date shall automatically and
without any other action by any Person be set for the purpose of determining
the Holders of Outstanding Securities of such series entitled to join in such
declaration, or rescission and annulment, as the case may be, which record date
shall be the close of business on the day the Trustee receives such
declaration, or rescission and annulment, as the case may be. The Holders of
Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
declaration, or rescission and annulment, as the case may be, whether or not
such Holders remain Holders after such record date; provided that, unless such
--------
declaration, or rescission and annulment, as the case may be, shall have become
effective by virtue of Holders of the requisite Principal Amount of Outstanding
Securities of such series on such record date (or their duly appointed agents)
having joined therein on or prior to the 90th day after such record date, such
declaration, or rescission and annulment, as the case may be, shall
automatically and without any action by any Person be canceled and of no
further effect.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants, but only for the benefit of the Holders of the
Securities of the series with respect to which such default exists, that if
(1) default is made in the payment of any installment of
interest on any Security of such series when such interest becomes due
and payable, and such default continues for a period of 30 days, or
(2) default is made in any mandatory or optional sinking
fund payment in respect of any Security of such series, when the same
becomes due and payable, and such default continues for a period of 30
days, or
(3) default is made in the payment of the principal of
(or premium, if any, on) any Security of such series at the Maturity
thereof, except any Maturity
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occurring by reason of a call for redemption through a mandatory or
optional sinking fund,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of the Securities of such series, 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) with
interest upon the overdue principal (and premium, if any) and upon overdue
installments of interest, at the rate of interest specified by the terms of
such Securities; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to 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 the Securities of any
Defaulted series of Securities by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 8.07.
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No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 7.05. Trustee May Enforce Claims without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 7.06. 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 of the Defaulted
series, and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 8.07;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities of the Defaulted series for principal (and premium,
if any) and interest, if any, 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; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 7.07. 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
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(1) such Holder is the Holder of a Security of a
Defaulted series and has previously given written notice to the
Trustee of a continuing Event of Default by virtue of which such
series is Defaulted;
(2) the Holders of not less than 25% (unless a different
percentage with respect to any series of Securities is specified for
the purpose of this Section by or pursuant to the Board Resolution
authorizing such series, in which case the percentage so specified) in
Principal Amount of the Outstanding Securities of such series shall
have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in Principal Amount of the Outstanding Securities of
such series;
it being understood and intended that no one or more Holders of Securities of a
Defaulted series shall have any right in any manner whatever by virtue of, or
by availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of Securities of such series or to obtain or to
seek to obtain priority or preference over any other 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 the Holders of the Securities of such
series.
SECTION 7.08. Unconditional Right of Securityholders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 2.09) interest, if any, on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies.
If the Trustee or any Securityholder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or
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abandoned for any reason, or has been determined adversely to the Trustee or to
such Securityholder, then and in every such case the Company, the Trustee, such
Securityholder and all Holders of other Securities of such series shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and such Securityholders shall continue as though no
such proceeding had been instituted.
SECTION 7.10. 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 2.08, no right or remedy herein conferred upon or reserved
to the Trustee or the Securityholders 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 7.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Securityholders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the
Securityholders, as the case may be.
SECTION 7.12. Control by Securityholders.
The Holders of a majority (unless, with respect to any series of
Securities, a requirement greater than a majority is specified for the purpose
of this Section by or pursuant to the Board Resolution authorizing such series,
in which case the greater requirement so specified) in Principal Amount of the
Outstanding Securities of a Defaulted 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,
(2) subject to the provisions of Section 8.01, the
Trustee shall have the right to decline to follow any such direction
if the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so directed
would be unjustly prejudicial to the Holders of the Securities of such
series
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not joining in any such direction or would involve the Trustee in
personal liability, and
(3) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction with respect to
Securities of any series, a record date shall automatically and without any
other action by any Person be set for determining the Holders of Outstanding
Securities of such series entitled to join in such direction, which record date
shall be the close of business on the day the Trustee receives such direction.
The Holders of Outstanding Securities of such series on such record date (or
their duly appointed agents), and only such Persons, shall be entitled to join
in such direction, whether or not such Holders remain Holders after such record
date; provided that, unless such direction shall have become effective by
--------
virtue of Holders of the requisite Principal Amount of Outstanding Securities
of such series on such record date (or their duly appointed agents) having
joined therein on or prior to the 90th day after such record date, such
direction shall automatically and without any action by any Person be canceled
and of no further effect.
SECTION 7.13. Waiver of Past Defaults.
The Holders of a majority (unless, with respect to any series of
Securities, a requirement greater than a majority is specified for the purpose
of this Section by or pursuant to the Board Resolution authorizing such series,
in which case the greater requirement so specified) in Principal Amount of the
Outstanding Securities of a Defaulted series may on behalf of the Holders of
all the Securities of such series waive, as to such series, any past default
hereunder and its consequences by virtue of which such series is, or with
notice or lapse of time or both would be, Defaulted, except a default not
theretofore cured
(1) in the payment of the principal of (or premium, if
any) or interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Ten 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, as to such series, cease to
exist, and any Event of Default arising therefrom shall, as to such series, 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.
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SECTION 7.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by such Holder's acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted
by any Securityholder for the enforcement of the payment of the principal of
(or premium, if any) or interest, if any, on any Security on or after the
respective Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date) and provided that neither
this Section nor the Trust Indenture Act shall be deemed to authorize any court
to require such an undertaking or to make such an assessment in any suit
instituted by the Company.
SECTION 7.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or
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affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 8.02. Notice of Default.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the TIA; provided, however,
that in the case of any default of the character specified in Section 7.01(5)
or (7) no such notice to Securityholders shall be given until at least 60 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time, or both,
would become, an Event of Default.
SECTION 8.03. Certain Rights of Trustee.
Subject to the provisions of Section 8.01 and Sections 315(a) through
315(d) of the TIA:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the 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 Securityholders pursuant to this
Indenture, unless such Securityholders 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;
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(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 or 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
(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 8.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
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 8.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Section
8.08 and 8.13, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 8.06. 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.
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SECTION 8.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and premium, if
any) or interest, if any, on the Securities.
SECTION 8.08. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest or resign in the manner and with the
effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail to all Holders of Securities of that series, as
their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the Trustee shall be deemed
to have a conflicting interest with respect to the Securities of any series if
the Trustee has or acquires a conflicting interest as described in Section
310(b) of the Trust Indenture Act.
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SECTION 8.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with respect to the
Securities of each series, which may be a Trustee hereunder for Securities of
one or more other series, shall be eligible to act under Section 310(a)(1) of
the TIA and shall have a combined capital and surplus (computed in accordance
with Section 310(a)(2) of the TIA) of at least $50,000,000. If at any time a
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 8.11.
(b) The Trustee may resign subject to the provisions of Section
310 of the TIA at any time with respect to the Securities of one or more series
by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in Principal
Amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 8.08(a)
after written request therefor by the Company or by any Securityholder
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
8.09 and shall fail to resign after written request therefor by the
Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 7.14, any
Securityholder who has
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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.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that 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 8.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in Principal Amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 8.11, 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 Securityholders and accepted
appointment in the manner required by Section 8.11, any Securityholder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to the Holders of Securities of such series in the manner provided in Section
1.06. Each notice shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Principal Corporate
Trust Office.
SECTION 8.11. Acceptance of Appointment by Successor.
(a) In case of the appointment of a successor Trustee with respect
to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights,
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powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its lien, if any, provided for in
Section 8.07.
(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 series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall (subject to
its lien, if any, provided for in Section 8.07) 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 Subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
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SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that 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 8.13. Preferential Collection of Claims against Company.
If the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company the Trustee shall be subject
to the provisions of Section 311 of the Trust Indenture Act regarding the
collection of claims against the Company.
SECTION 8.14. Authenticating Agents.
The Trustee, from time to time upon receipt of a Company Request,
shall promptly appoint one or more Authenticating Agents with power to act on
its behalf and subject to its direction in the authentication and delivery of
Securities of one or more series and in connection with registrations of
transfers and exchanges of Securities of such series as fully for all intents
and purposes as though each Authenticating Agent had been expressly authorized
to authenticate and deliver such Securities. For all purposes of this
Indenture, the authentication and delivery of Securities by any Authenticating
Agent pursuant to this Section shall be deemed to be the authentication and
delivery of such Securities "by the Trustee." Any Authenticating Agent shall
be acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America or of any
State and authorized under such laws to act as authenticating agent, with a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the TIA) of at least $5,000,000 and subject to supervision or examination by
Federal or State authority. If at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of any
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Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the Trustee, the Company or the Authenticating Agent or such successor
corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time and shall, upon receipt of a Company Request, terminate the agency of
any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this Section, the
Trustee, upon receipt of a Company Request, shall promptly appoint a successor
Authenticating Agent acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.06 to the Holders of Securities
of the series with respect to which such Authenticating Agent will serve, and
shall publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The provisions of Sections 2.11, 8.04 and 8.05 shall be applicable to
any Authenticating Agent.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services.
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
SECTION 9.01. Purposes of Meetings.
A meeting of the Holders of one or more series of the Securities may
be called at any time and from time to time pursuant to the provisions of this
Article Nine for any of the following purposes:
(1) to give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to waive any default
hereunder and its consequences, or to take any other action authorized
to be taken by Securityholders pursuant to any of the provisions of
Article Seven;
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(2) to remove the Trustee and appoint a successor
pursuant to the provisions of Article Eight;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
10.02; or
(4) to take any other action authorized to be taken by or
on behalf of the holders of a specified aggregate Principal Amount of
the Outstanding Securities of any series under any other provision of
this Indenture or under applicable law.
SECTION 9.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders to take
any action specified in Section 9.01, to be held at such time and at such place
in the Borough of Manhattan, The City of New York, State of New York, as the
Trustee shall determine. Notice of every meeting of the Securityholders,
setting forth the time and place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed to holders of the
Securities of all series that may be affected by the action proposed to be
taken at the meeting at their addresses as they shall appear in the Security
Register. Such notice shall be mailed not less than 20 nor more than 90 days
prior to the date fixed for the meeting.
SECTION 9.03. Call of Meetings by Company or Securityholders.
In case at any time the Company, pursuant to a Board Resolution, or
the holders of at least 10% in aggregate Principal Amount of the Securities
then Outstanding of all series that may be affected by the action proposed to
be taken at the meeting, shall have requested the Trustee to call a meeting of
Securityholders of all series that may be so affected by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or such
Securityholders may determine the time and the place in said Borough of
Manhattan for such meeting and may call such meeting to take any action
authorized in Section 9.01, by mailing notice thereof as provided in Section
9.02.
SECTION 9.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a Person
shall (a) be a Holder of one or more Securities of a series affected by the
action proposed to be taken at the meeting or (b) be a Person appointed by an
instrument in writing as proxy by a holder of one or more such Securities. The
only Persons who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
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SECTION 9.05. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting
of Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders, as provided in Section 9.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of a majority in
aggregate Principal Amount of the Securities represented at the meeting and
entitled to vote.
At any meeting each Securityholder of a series or proxy shall be
entitled to one vote for each principal amount constituting the authorized
minimum denomination of Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have
no right to vote other than by virtue of Securities of such series held by him
or instruments in writing as aforesaid duly designating him as the Person to
vote on behalf of other Securityholders of such series. Any meeting of
Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03
may be adjourned from time to time, and the meeting may be held as so adjourned
without further notice.
At any meeting of Securityholders, the presence of Persons holding or
representing Securities in an aggregate Principal Amount sufficient to take
action upon the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum; but, if less than a quorum be
present, the Persons holding or representing a majority in aggregate Principal
Amount of the Securities represented at the meeting and entitled to vote may
adjourn such meeting with the same effect, for all intents and purposes, as
though a quorum had been present.
SECTION 9.06. Voting.
The vote upon any resolution submitted to any meeting of
Securityholders of a series shall be by written ballots on which shall be
subscribed the signatures of the holders of Securities of such series or of
their representatives by proxy and the serial number or numbers of the
Securities of such series held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Securityholders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits
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by one or more Persons having knowledge of the facts setting forth a copy of
the notice of the meeting and showing that said notice was mailed as provided
in Section 9.02. The record shall show the serial numbers of the Securities
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 9.07. Action by Securityholders.
Whenever in this Indenture it is provided that the Holders of a
specified percentage in aggregate Principal Amount of the Securities of any
series may take any action (including the making of any demand or request, the
giving of any notice, consent or waiver or the taking of any other action), the
fact that at the time of taking any such action the Holders of such specified
percentage have joined therein may be evidenced (a) by any Act of such
Securityholders pursuant to Section 1.04, or (b) by the record of such
Securityholders voting in favor thereof at any meeting of such Securityholders
duly called and held in accordance with the provisions of Article Nine, or (c)
by a combination of such Act and any such record of such a meeting of such
Securityholders.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without Consent of
Securityholders.
Without the consent of the Holders of any Securities, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, for
any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company, for the
benefit of the Holders of the Securities of any one or more 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
(3) 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
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provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this
Indenture, provided that such action shall not adversely affect the
--------
interest of any of the Holders of the Securities of any series in any
material respect; or
(4) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under TIA, or under any similar
Federal statute hereafter enacted, and to add to this Indenture such
other provisions as may be expressly permitted by TIA, excluding,
however, the provisions referred to in Section 316(a)(2) of TIA or any
corresponding provision in any similar Federal statute hereafter
enacted; or
(5) to provide for the issuance under this Indenture of
Securities in the form only of an entry or entries in the Security
Register and without delivery thereof in any form (including all
appropriate notification and publication and other provisions), and to
provide for exchangeability of such Securities with the Securities of
the same series issued hereunder; or
(6) to set forth the forms or terms (including, without
limitation, additional covenants and changes in or eliminations of
covenants previously set forth in this Indenture) of any one or more
series of Securities not previously issued; or
(7) to change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
--------
any such change or elimination shall become effective only when there
is no Security Outstanding of any series authorized prior to the
execution of such supplemental indenture which is entitled to the
benefit of such provision; or
(8) 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 8.11(b).
SECTION 10.02. Supplemental Indentures with Consent of
Securityholders.
With the consent of the Holders of not less than 66 2/3% (unless a
different percentage with respect to any series of Securities is specified for
the purpose of this Section 10.02 by or pursuant to the Board Resolution
authorizing such series, in which case, as to such series, the percentage so
specified) in Principal Amount of the Outstanding Securities of each series to
be affected, in each case by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions
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of this Indenture or of modifying in any manner the rights of the Holders of
such Securities under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest (unless otherwise provided
with respect to such Security pursuant to Section 2.01(20)), if any,
on, any Security, or reduce the principal thereof payable at Stated
Maturity or the rate of interest, if any, thereon, or change any
Redemption Price, or reduce the amount of principal of any Security
that may at any time be declared to be due and payable pursuant to
Section 7.02, or change any Place of Payment where, or the coin or
currency in which, any Security or any premium or 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 alter
adversely the terms and provisions, if any, applicable to conversion
or exchange of any Securities; or
(2) 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) modify any of the provisions of this Section, Section
5.10 or 7.13, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding 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 8.11(b) and 10.01(8).
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 an Act of Securityholders 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.
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SECTION 10.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 8.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by and complies with this Indenture. The
Trustee may, but shall not (except to the extent required in the case of a
supplemental indenture entered into under Section 10.01(4) be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 10.04. 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 10.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 10.06. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall, if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of Directors, 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 of such series.
SECTION 10.07. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 10.02, the Company
shall give notice thereof to the Holders of each Outstanding Security of any
series so affected, pursuant to Section 1.06, setting forth in general terms
the substance of such supplemental indenture. Any failure of the Company to
give such notice, or any defect therein, shall not, in any way, impair or
affect the validity of any such supplemental indenture.
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ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 11.01. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless
(1) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance
or transfer the properties and assets of the Company substantially as
an entirety shall be a corporation organized and existing under the
laws of the United States of America or any State or the District of
Columbia, and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest, if
any, on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
(2) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse of
time, or both, would become an Event of Default, shall have happened
and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 11.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 11.01, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance or transfer is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein and thereafter the
predecessor corporation shall be released from all obligations and covenants
under this Indenture and the Securities. In the event of any such conveyance
or transfer, the Company as the predecessor corporation may be dissolved, wound
up and liquidated at any time thereafter.
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ARTICLE TWELVE
SATISFACTION AND DISCHARGE
SECTION 12.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer, exchange
or conversion of Securities herein expressly provided for and any rights to
receive payments of interest thereon), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.08, and (ii) Securities for whose
payment money has theretofore been (aa) 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 5.03(d) or (bb) paid to any State or the
District of Columbia pursuant to its unclaimed property or
similar laws) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, 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, money in an amount in the
currency in which such Securities are payable, sufficient to
pay and discharge the entire indebtedness on such Securities
not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, to the
date of such
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deposit (in the case of Securities which have become due and
payable), or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07, the obligations
of the Trustee to any Authenticating Agent under Section 8.14 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 12.02 and the
last paragraph of Section 5.03 shall survive.
SECTION 12.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 5.03, all
money deposited with the Trustee pursuant to Section 12.01 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited with
the Trustee; but such money need not be segregated from other funds except to
the extent required by law.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.01. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations
of the Company, and that no such personal liability whatever shall attach to,
or is or shall be incurred by, the incorporators, stockholders, officers or
directors, as such, of the Company or of any successor corporation, or any of
them, because of the creation of the
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indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom,
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Securities.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.01. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at its option at any time, to have Section
14.02 or Section 14.03 applied to any Securities or any series of Securities,
as the case may be, if so provided with respect to the Securities of any series
pursuant to Section 2.01, upon compliance with the conditions set forth in this
Article. Any such election shall be evidenced by a Board Resolution or in
another manner specified as contemplated by Section 2.01 for such Securities.
SECTION 14.02. Defeasance and Discharge.
Upon the Company's exercise of its option to have this Section applied
to any Securities or any series of Securities, as the case may be, the Company
shall be deemed to have been fully discharged from all or any specified portion
of its obligations with respect to such Securities as provided in this Section
on and after the date the conditions set forth in Section 14.04 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities or, at the Company's option, any
specified payment obligation and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 14.04 and as more fully set forth in such Section, payments in respect
of all or any defeased portion of the principal of and any premium and/or
interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 2.06, 2.07, 2.08,
5.02 and 5.03, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, and (4) this Article. Subject to compliance with this
Article, the Company may exercise its option, if any, to have this
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Section applied to any Securities notwithstanding the prior exercise of its
option, if any, to have Section 14.03 applied to such Securities.
SECTION 14.03. Covenant Defeasance.
Upon the Company's exercise of its option, if any, to have this
Section applied to any Securities or any series of Securities, as the case may
be, (1) the Company shall be released from any of its obligations under
Sections 5.08 and 5.09, and any covenants provided pursuant to Section
2.01(17), 10.01(2) or 10.01(6) for the benefit of the Holders of such
Securities, (2) the occurrence of any event specified in Section 7.01(7) (with
respect to Sections 5.08 and 5.09, and any such covenants provided pursuant to
Sections 2.01(17), 10.01(2) or 10.01(6)) and 7.01(6) shall be deemed not to be
or result in an Event of Default, in each case with respect to such Securities
as provided in this Section 14.03 on and after the date the conditions set
forth in Section 14.04 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that, with
respect to such Securities, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such specified Section (to the extent so specified in the case of Section
7.01(7)), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 14.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
14.02 or Section 14.03 to any Securities or any series of Securities, as the
case may be:
(1) In the event of an election to have Section 14.02
apply to any Securities or any series of Securities, as the case may
be, the Company shall have deposited or caused to be deposited with
the Trustee (or another trustee which satisfies the requirements
contemplated by Section 8.09 and agrees to comply with the provisions
of this Article applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case
sufficient to pay and discharge, and which shall be applied by the
Trustee (or any such other qualifying trustee) to pay and discharge,
all or any specific portion of the principal of and any premium and
interest on such Securities on the respective Interest Payment Date
and/or Stated Maturities, in accordance with the terms of this
Indenture and such Securities.
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(2) In the event of an election to have Section 14.02
apply to any Securities or any series of Securities, as the case may
be, the Company shall have advised the Trustee in writing of the
payment or payments of the Securities of any series to which such
deposit is to be applied.
(3) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the meaning of
the Trust Indenture Act (assuming all Securities are in default within
the meaning of such Act).
(4) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from any such deposit constituting an
investment company within the meaning of the Investment Company Act
unless such trust shall be registered under such Act or exempt from
registration thereunder.
(5) In the event of an election to have Section 14.03
apply to any Securities or any series of Securities, as the case may
be, the Company shall satisfy all terms and conditions which shall be
imposed as conditions to the application of Section 14.03 to such
Securities in connection with the provisions regarding Section 14.03
adopted by the Company with respect to such Securities pursuant to
Section 2.01.
SECTION 14.05. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions.
The Trustee shall, subject to the provisions of the Indenture, hold in
trust any money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 14.04(1), and any money received by the Trustee as payment
of principal or interest in respect of such U.S. Government Obligations, and
shall apply all such money, in accordance with the provisions of the Securities
and the Indenture, to the payment, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such deposit
(including any money to be received by the Trustee as principal or interest in
respect of such U.S. Government Obligations) was made with the Trustee;
provided, however, that, if the Trustee shall at any time hold in trust
- -------- -------
pursuant to this Section, as a result of a deposit made pursuant to this
Article, any money in excess of the amount required to make the payments to
which such deposit (including any money to be received by the Trustee as
principal or interest in respect of any U.S. Government Obligations included
within such deposit) was to be applied, the Trustee shall, upon Company
Request, pay to the Company such excess money.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 14.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of Outstanding Securities.
-70-
<PAGE> 79
SECTION 14.06. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 14.02 or 14.03 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust pursuant to Section 14.05 with respect to such
Securities in accordance with this Article; provided, however, that if the
-----------------
Company makes any payment of principal of or any premium or interest on any
such Security following such reinstatement of its obligations, the Company
shall be subrogated to the rights (if any) of the Holders of such Securities to
receive such payment from the money so held in trust.
ARTICLE FIFTEEN
MISCELLANEOUS
SECTION 15.01. Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute but
one and the same instrument.
(Remainder of page intentionally left blank)
-71-
<PAGE> 80
Bank of America National Trust and Savings Association hereby accepts
the trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
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.
J. C. PENNEY COMPANY, INC.
By_________________________________
Attest:
___________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By_________________________________
Attest:
__________________________
-72-
<PAGE> 81
STATE OF TEXAS )
) ss.:
COUNTY OF COLLIN )
On this ________ day of ____________________, 1994, before me
personally came ___________________________, to me known, who, being by me duly
sworn, did depose and say that he resides at ______________________________;
that he is a _________________________ of J. C. Penney Company, Inc., one of the
corporations described in and which executed the foregoing instrument; that he
knows the corporate seal of said corporation; that the seal affixed to said
instrument is said corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
_________________________________
Notary Public
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On this ________ day of ____________________, 1994, before me
personally came ___________________________, to me known, who, being by me duly
sworn, did depose and say that he resides at ______________________________;
that he is a _________________________ of Bank of America National Trust and
Savings Association, a national banking association described in and which
executed the foregoing instrument; that he knows the corporate seal of said
association; that the seal affixed to said instrument is said corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
_________________________________
Notary Public
-73-
<PAGE> 1
Exhibit 4(b)(i)
(FORM OF FACE OF NOTE)
$........... No...........
J. C. PENNEY COMPANY, INC.
% Note Due
J. C. Penney Company, Inc., a Delaware Corporation (hereinafter called the
Company), for value received, promises to pay to or
registered assigns, the principal sum of Dollars, on ,and to pay
interest on said principal sum, semi(annually on (and )
of each year, at the rate of % per annum, from the (or the , as
the case may be,) next preceding the date of this Note to which interest has
been paid or duly provided for, unless the date hereof is a date to which
interest has been paid or duly provided for, in which case from the date of
this Note, or unless no interest has been paid on the Notes, in which case
from ,until the principal hereof becomes due and payable, and at such
rate on any overdue principal and (to the extent that the payment of such
interest shall be legally enforceable) on any overdue instalment of interest.
Notwithstanding the foregoing, when there is no existing default in the payment
of interest on the Notes, if the date hereof is after a Regular Record Date,
which shall be the close of business on (or ) (whether or not a Business
Day) (, as the case may be,) next preceding an Interest Payment Date, and
before the next succeeding Interest Payment Date, this Note shall bear
interest from such Interest Payment Date; provided, however, that if the
Company shall default in the payment of interest due on such Interest Payment
Date, then this Note shall bear interest from the next preceding Interest
Payment Date to which interest has been paid or duly provided for, or if no
interest has been paid on the Notes, from . The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in whose name
this Note (or one or more Predecessor Notes) is registered at the Regular
Record Date for such Interest Payment Date. The principal of (and premium, if
any) and interest on this Note are payable in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts, at the agency or agencies maintained by the
Company for such purpose; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Any interest not punctually paid or duly provided for shall be payable as
provided in the Indenture.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
at this place.
Unless one of the certificates of authentication hereon has been
executed by or on behalf of the Trustee by manual signature, this Note shall
not be
<PAGE> 2
2
entitled to any benefit under the Indenture, or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, J. C. Penney Company, Inc. has caused the
execution hereof in its corporate name by its duly authorized officers.
J. C. PENNEY COMPANY, INC.
By..............................
CHAIRMAN OF THE BOARD
By..............................
SECRETARY
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the % Notes Due referred to in the
within-mentioned Indenture.
,AS TRUSTEE
By..............................
Authorized Officer
(FORM OF ALTERNATE CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the % Notes Due referred to in the
within-mentioned Indenture.
,AS TRUSTEE
By..............................
Authenticating Agent
By..............................
Authorized Officer
<PAGE> 3
(FORM OF REVERSE OF NOTE)
J. C. PENNEY COMPANY, INC.
% Note Due
This Note is one of a duly authorized issue of unsecured debentures,
notes or other evidences of indebtedness of Company (herein called the
"Securities") of the series hereinafter specified, all issued and to be issued
under an Indenture dated as of April 1, 1994 (herein called the "Indenture"),
between the Company and Bank of America National Trust and Savings Association,
Trustee (herein called the "Trustee", which term includes any successor Trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights
thereunder of the Company, the Trustee and the Holders of the Securities, and
the terms upon which the Securities are, and are to be, authenticated and
delivered. The Securities, which are unlimited in aggregate principal amount,
may be issued in one or more series, which different series may be issued in
various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any), may be subject to different covenants and Events of Default and
may otherwise vary as in the Indenture provided. This Note is one of a series
of the Securities designated as the % Notes Due (herein called
the "Notes"), limited in aggregate principal amount to $ .
On and after ,the Notes may be redeemed, at the option of
the Company, as a whole or from time to time in part, on any date prior to
Stated Maturity, upon not less than 30 nor more than 60 days' prior notice
given as provided in the Indenture, at (insert Redemption Price or table)
together with accrued interest to the Redemption Date.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the Security
Register, upon surrender of this Note for registration of transfer at one of
the agencies maintained by the Company for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar (if other than the Company) duly executed
by, the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only as registered Notes without coupons in the
denominations of $ and any integral multiple thereof. As provided in
the Indenture, Notes are exchangeable for a like aggregate principal amount of
Notes of different authorized denominations, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
<PAGE> 4
2
Prior to due presentment for registration of transfer of this Note,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the absolute owner hereof
for the purpose of receiving payment as herein provided and for all other
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
(Additional covenants, terms or provisions, if any, to be inserted
here as well as any changes in covenants, terms or provisions contained in the
Indenture.)
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of any series under the
Indenture at any time by the Company with the consent of the Holders of 66 2/3%
(unless a different percentage is specified with respect to any series of
Securities, in which case, as to such series, the percentage so specified) in
aggregate principal amount of the Outstanding Securities of each series
affected by any such amendment or modification. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all the Notes, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, places and rate, and in the coin or
currency, herein prescribed.
No recourse shall be had for the payment of the principal of (or
premium, if any) or interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE> 1
Exhibit 4(b)(ii)
(FORM OF FACE OF NOTE)
For purposes of Section 1273 of the Internal Revenue Code of 1986, as
amended, the issue price of this Note is % of its principal amount and
the issue date is
$............ No...........
J. C. PENNEY COMPANY, INC.
Zero Coupon Note Due
J. C. Penney Company, Inc., a Delaware Corporation (hereinafter called
the Company), for value received, promises to pay to or registered
assigns, the principle sum of Dollars, on .
The principal of this Note shall not bear interest except in the case of a
default in payment of principal upon acceleration, redemption or Stated Maturity
and in such case the overdue principal of this Note shall bear interest at the
rate of % per annum (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such default in
payment to the date payment of such principal has been made or duly provided
for. The principal of and any such interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, at the agency or agencies
maintained by the Company for such purpose.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
at this place.
Unless one of the certificates of authentication hereon has been
executed by or on behalf of the Trustee by manual signature, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, J. C. Penney Company, Inc. has caused the
execution hereof in its corporate name by its duly authorized officers.
J. C. PENNY COMPANY,INC.
By.............................
CHAIRMAN OF THE BOARD
By.............................
SECRETARY
<PAGE> 2
2
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Zero Coupon Notes Due referred to in the
within-mentioned Indenture.
,AS TRUSTEE
By..............................
Authorized Officer
(FORM OF ALTERNATE CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Zero Coupon Notes Due referred to in the
within-mentioned Indenture.
,AS TRUSTEE
By..............................
Authenticating Agent
By..............................
Authorized Officer
<PAGE> 3
(FORM OF REVERSE OF NOTE)
J. C. PENNEY COMPANY, INC.
Zero Coupon Note Due
This Note is one of a duly authorized issue of unsecured debentures,
notes or other evidences of indebtedness of the Company (herein called the
"Securities") of the series hereinafter specified, all issued and to be issued
under an Indenture dated as of April 1, 1994 (herein called the "Indenture"),
between the Company and Bank of America National Trust and Savings Association,
Trustee (herein called the "Trustee", which term includes any successor Trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights
thereunder of the Company, the Trustee and the Holders of the Securities, and
the terms upon which the Securities are, and are to be, authenticated and
delivered. The Securities, which are unlimited in aggregate principal amount,
may be issued in one or more series, which different series may be issued in
various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any), may be subject to different covenants and Events of Default
and may otherwise vary as in the Indenture provided. This Note is one of a
series of the Securities designated as the Zero Coupon Notes Due
(herein called the "Notes"), limited in aggregate principal amount to
$ at Stated Maturity.
If an Event of Default with respect to the Notes shall occur and be
continuing, the Trustee or the Holders of not less than 25% in principal amount
of the Notes Outstanding may declare to be due and payable immediately in the
manner and with the effect provided in the Indenture an amount of principal
equal to the sum of (i) the initial public offering price of the Notes, (ii)
the aggregate of the portions of the original issue discount which shall be
added cumulatively each (and ), computed as
provided in the Indenture, and (iii) accrued amortization of original issue
discount from the preceding (or ) to
the date of declaration. Upon payment of this amount, all of the Company's
obligations in respect of the payment of the principal of the Notes shall
terminate.
The Notes may be redeemed at any time, at the option of the Company,
as a whole or from time to time in part, upon not less than 30 nor more than 60
days' prior notice given as provided in the Indenture, at the Redemption Price
of 100% of the principal amount thereof at Stated Maturity, without premium.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the Security
Register, upon surrender of this Note for registration of transfer at one of
the agencies maintained by the Company for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar (if other than the Company) duly executed
by, the Holder hereof or his attorney duly authorized in writing,
<PAGE> 4
2
and thereupon one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only as registered Notes without coupons in the
denominations of $ and any integral multiple thereof. As provided in
the Indenture, Notes are exchangeable for a like aggregate principal amount of
Notes of different authorized denominations, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this Note,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the absolute owner hereof
for the purpose of receiving payment as herein provided and for all other
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
(Additional covenants, terms or provisions, if any, to be inserted
here as well as any changes in covenants, terms or provisions contained in the
Indenture.)
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of any series under the
Indenture at any time by the Company with the consent of the Holders of 66 2/3%
(unless a different percentage is specified with respect to any series of
Securities, in which case, as to such series, the percentage so specified) in
aggregate principal amount of the Outstanding Securities of each series
affected by any such amendment or modification. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all the Notes, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest, if any, on
this Note at the times, places and rate, and in the coin or currency, herein
prescribed.
No recourse shall be had for the payment of the principal of or the
interest, if any, on this Note, or for any claim based hereon, or otherwise in
<PAGE> 5
3
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE> 1
Exhibit 4(b)(iii)
(FORM OF FACE OF DEBENTURE)
For purposes of Section 1273 of the Internal Revenue Code of 1986, as
amended, the issue price of this Debenture is % of its principal amount and
the issue date is
$.......... No...........
J. C. PENNEY COMPANY, INC.
% Debenture Due
J. C. Penney Company, Inc., a Delaware Corporation (hereinafter called
the Company), for value received, promises to pay to or registered
assigns, the principal sum of Dollars, on ,
and to pay interest on said principal sum, (semi)annually on
(and ) of each year, at the rate of % per annum, from
the (or the , as the case may be,) next
preceding the date of this Debenture to which interest has been paid or duly
provided for, unless the date hereof is a date to which interest has been paid
or duly provided for, in which case from the date of this Debenture, or unless
no interest has been paid on the Debentures, in which case from , until
the principal hereof becomes due and payable, and at the rate of % per annum on
any overdue principal and on any overdue instalment of interest (to the extent
that the payment of such interest shall be legally enforceable).
Notwithstanding the foregoing, when there is no existing default in the payment
of interest on the Debentures, if the date hereof is after a Regular Record
Date, which shall be the close of business on (or )
(whether or not a Business Day)(, as the case may be,) next preceding an
Interest Payment Date, and before the next succeeding Interest Payment Date,
this Debenture shall bear interest from such Interest Payment Date; provided,
however, that if the Company shall default in the payment of interest due on
such Interest Payment Date, then this Debenture shall bear interest from the
next preceding Interest Payment Date to which interest has been paid or duly
provided for, or if no interest has been paid on the Debentures, from .
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Debenture (or one or more Predecessor Debentures) is
registered at the Regular Record Date for such Interest Payment Date. The
principal of and interest on this Debenture are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts, at the agency or agencies
maintained by the Company for such purpose; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register. Any interest not punctually paid or duly provided for
shall be payable as provided in the Indenture.
<PAGE> 2
2
Reference is made to the further provisions of this Debenture set
forth on the reverse hereof, which shall have the same effect as though fully
set forth at this place.
Unless one of the certificates of authentication hereon has been
executed by or on behalf of the Trustee by manual signature, this Debenture
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, J. C. Penney Company, Inc. has caused the
execution hereof in its corporate name by its duly authorized officers.
J. C. PENNEY COMPANY, INC.
By..............................
CHAIRMAN OF THE BOARD
By..............................
SECRETARY
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the % Debentures Due referred to in the
within-mentioned Indenture.
,AS TRUSTEE
By..............................
Authorized Officer
(FORM OF ALTERNATE CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the % Debentures Due referred to in the
within-mentioned Indenture.
,AS TRUSTEE
By..............................
Authenticating Agent
By..............................
Authorized Officer
<PAGE> 3
(FORM OF REVERSE OF DEBENTURE)
J. C. PENNEY COMPANY, INC.
% Debenture Due
This Debenture is one of a duly authorized issue of unsecured
debentures, notes or other evidences of indebtedness of the Company (herein
called the "Securities") of the series hereinafter specified, all issued and to
be issued under an Indenture dated as of April 1, 1994 (herein called the
"Indenture"), between the Company and Bank of America National Trust and
Savings Association, Trustee (herein called the "Trustee", which term includes
any successor Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for the statement of
the respective rights thereunder of the Company, the Trustee and the Holders of
the Securities and the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities, which are unlimited in aggregate
principal amount, may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at different
times, may bear interest (if any) at different rates, may be subject to
different redemption provisions (if any), may be subject to different sinking,
purchase or analogous funds (if any), may be subjected to different covenants
and Events of Default and may otherwise vary as in the Indenture provided.
This Debenture is one of a series of the Securities designated as the %
Debenture Due (herein called the "Debentures"), limited in aggregate
principal amount to $ at State Maturity.
If an Event of Default with respect to the Debentures shall occur and
be continuing, the Trustee or the Holders of not less than 25% in principal
amount of the Debentures Outstanding may declare to be due and payable
immediately in the manner and with the effect provided in the Indenture an
amount of principal equal to the sum of (i) the initial public offering price
of the Debentures, (ii) the aggregate of the portions of the original issue
discount which shall be added cumulatively each (and ),
computed as provided in the Indenture, and (iii) accrued amortization of
original issue discount from the preceding (or ),
to the date of declaration, together with accrued interest to the date of
declaration. Upon payment of this amount, all of the Company's obligations in
respect of the payment of the principal of the Debentures and such accrued
interest shall terminate.
The Debentures may be redeemed at any time, at the option of the
Company, as a whole or from time to time in part, upon not less than 30 nor
more than 60 days' prior notice given as provided in the Indenture, at (insert
Redemption Price or table) together with accrued interest to the Redemption
Date.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Debenture may be registered on the
Security Register, upon surrender of this Debenture for registration of
transfer at one of the agencies maintained by the Company for such purpose,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar (if other than the
Company)
<PAGE> 4
2
duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Debentures, of authorized denominations and for
the same aggregate principal, will be issued to the designated transferee or
transferees.
The Debentures are issuable only as registered Debentures without
coupons in the denominations of $ and any integral multiple thereof.
As provided in the Indenture, Debentures are exchangeable for a like aggregate
principal amount of Debentures of different authorized denominations, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Debenture is registered as the absolute
owner hereof for the purpose of receiving payment as herein provided and for
all other purposes, whether or not this Debenture be overdue, and neither the
company, the Trustee nor any such agent shall be affected by notice to the
contrary.
(Additional covenants, terms or provisions, if any, to be inserted
here as well as any changes in covenants, terms or provisions contained in the
Indenture.)
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of any series under the
Indenture at any time by the Company with the consent of the Holders of 66 2/3%
(unless a different percentage is specified with respect to any series of
Securities, in which case, as to such series, the percentage so specified) in
aggregate principal amount of the Outstanding Securities of each series
affected by any such amendment or modification. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Debentures at the time Outstanding, on behalf of the
Holders of all the Debentures, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Debenture
shall be conclusive and binding upon such Holder and upon all future Holders of
this Debenture and of any Debenture issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest, if any, on
this Debenture at the times, places and rate, and in the coin or currency,
herein prescribed.
<PAGE> 5
3
No recourse shall be had for the payment of the principal of or the
interest, if any, on this Debenture, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, au such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All terms used in this Debenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE> 1
Exhibit 4(b)(iv)
(FORM OF FACE OF DEBENTURE)
$.......... $..........
J. C. PENNEY COMPANY, INC.
% Debenture Due
J. C. Penney Company, Inc., a delaware Corporation (hereinafter called the
Company), for value received, promises to pay to or registered
assigns, the principal sum of Dollars, on ,
and to pay interest on said principal sum, (semi)annually on (and )
of each year, at the rate of % per annum, from the (or
the , as the case may be,) next preceding the date of this
Debenture to which interest has been paid or duly provided for, in which case
from the date to this Debenture, or unless no interest has been paid on the
Debentures, in which case form , until the principal hereof
becomes due and payable, and at such rate on any overdue principal and (to the
extent that the payment of such interest shall be legally enforceable) on any
overdue instalment of interest. Notwithstanding the foregoing, when there is
no existing default in the payment of interest on the Debentures, if the date
hereof is after a Regular Record Date, which shall be the close of business
on (or )(whether or not a Business Day)(as the case may be,) next
preceding an Interest Payment Date, and before the next succeeding Interest
Payment Date, this Debenture shall bear interest from such Interest Payment
Date; provided, however, that if the Company shall default in the payment of
interest due on such Interest Payment date, then this Debenture shall bear
interest from the next preceding Interest Payment Date to which interest
has been paid or duly provided for, or if no interest has been paid on the
debentures, from . The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Debenture (or on or more
Predecessor Debentures) is registered at the Regular Record Date for such
Interest Payment Date. The principal of (and premium, if any) and interest on
this Debenture are payable in such coin or currency of the United States of
America as at the time of payment is legal tender form payment of public and
private debts, at the agency or agencies maintained by the company for such
purpose; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register. Any interest
not punctually paid or duly provided for shall be payable as provided in the
Indenture.
Reference is made to the further provisions of this Debenture set forth
on the reverse hereof, which shall have the same effect as though fully set
forth at this place.
Unless one of the certificates of authentication hereon has been
executed by or on behalf of the Trustee by manual signature, this Debenture
shall not
<PAGE> 2
2
be entitled to any benefit under the Indenture, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, J. C. Penney Company, Inc. has caused the
execution hereof in its corporate name by its duly authorized officers.
J. C. PENNEY COMPANY, INC.
By..............................
CHAIRMAN OF THE BOARD
By..............................
SECRETARY
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the % Debenture Due referred to in the
within-mentioned Indenture.
,AS TRUSTEE
By..............................
Authorized Officer
(FORM OF ALTERNATE CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the % Dentures Due referred to in the
within-mentioned Indenture.
,AS TRUSTEE
By..............................
Authenticating Agent
By..............................
Authorized Officer
<PAGE> 3
(FORM OF REVERSE OF DEBENTURE)
J. C. PENNEY COMPANY, INC.
% Debenture Due
This Debenture is one of a duly authorized issue of unsecured
debentures, notes or other evidences of indebtedness of the Company (herein
called the "Securities") of the series hereinafter specified, all issued and to
be issued under an Indenture dated as of April 1, 1994 (herein called the
"Indenture"), between the Company and Band of America National Trust and
Savings Association, Trustee (herein called the "Trustee", which term includes
any successor Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for the statement of
the respective rights thereunder of the Company, the Trustee and the Holders of
the Securities and the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities, which are unlimited in aggregate
principal amount, may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at different
times, may bear interest (if any) at different rates, may be subject to
different redemption provisions (if any), may be subject to different sinking,
purchase or analogous funds (if any), may be subjected to different covenants
and Events of Default and may otherwise vary as in the Indenture provided.
This Debenture is one of a series of the Securities designated as the %
Debenture Due (herein called the "Debentures"), limited in
aggregate principal amount to $ .
On and after ,the Debentures may be redeemed, at the option of
the Company, as a whole or from time to time in part, on any date prior to
Stated Maturity, upon not less than 30 nor more than 60 days' prior notice
given as provided in the Indenture, at (insert Redemption Price or table)
together with accrued interest to the Redemption Date.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Debenture may be registered on the
Security Register, upon surrender of this Debenture for registration of
transfer at one of the agencies maintained by the Company for such purpose,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar (if other than the
Company) duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures, of authorized denominations
and for the same aggregate principal, will issued to the designated transferee
or transferees.
The Debentures are issuable only as registered Debentures without
coupons in the denominations of $ and any integral multiple thereof.
As provided in the Indenture, Debentures are exchangeable for a like aggregate
principal amount of Debentures of different authorized denominations, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
<PAGE> 4
2
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Debenture is registered as the absolute
owner hereof for the purpose of receiving payment as herein provided and for
all other purposes, whether or not this Debenture be overdue, and neither the
company, the Trustee nor any such agent shall be affected by notice to the
contrary.
(Additional covenants, terms or provisions, if any, to be inserted
here as well as any changes in covenants, terms or provisions contained in the
Indenture.)
In an Event of Default with respect to the Debentures shall occur and
be continuing, the principal of all the Debentures may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of any series under the
Indenture at any time by the Company with the consent of the Holders of 66 2/3%
(unless a different percentage is specified with respect to any series of
Securities, in which case, as to such series, the percentage so specified) in
aggregate principal amount of the Outstanding Securities of each series
affected by any such amendment or modification. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Debentures at the time Outstanding, on behalf of the
Holders of all the Debentures, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Debenture
shall be conclusive and binding upon such Holder and upon all future Holders of
this Debenture and of any Debenture issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any)
and interest, on this Debenture at the times, places and rate, and in the coin
or currency, herein prescribed.
No recourse shall be had for the payment of the principal of or the
interest, if any, on this Debenture, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All terms used in this Debenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE> 1
Exhibit 4(b)(v)
(FORM OF FACE OF DEBENTURE)
$...... No.......
J.C. PENNEY COMPANY, INC.
% Sinking Fund Debenture Due
J.C. Penney Company, Inc., a Delaware Corporation (hereinafter called
the Company), for value received, promises to pay to
or registered assigns, the principal sum of
Dollars, on
and to pay interest on said principal sum, (semi)annually
on (and ) of each year, at the rate of % per annum,
from the (or the , as the case may be,) next preceding
the date of this Debenture to which interest has been paid or duly provided
for, unless the date hereof is a date to which interest has been paid or duly
provided for, in which case from the date of this Debenture, or unless no
interest has been paid on the Debentures, in which case from , until
the principal hereof becomes due and payable, and at such rate on any overdue
principal and premium and (to the extent that the payment of such interest
shall be legally enforceable) on any overdue instalment of interest.
Notwithstanding the foregoing, when there is no existing default in the payment
of interest on the Debentures, if the date hereof is after a Regular Record
Date, which shall be the close of business on (or
) (whether or not a Business Day), (as the case may be,)
next preceding an Interest Payment Date, and before the next succeeding
Interest Payment Date, this Debenture shall bear interest from such Interest
Payment Date; provided, however, that if the Company shall default in the
payment of interest due on such Interest Payment Date, then this Debenture
shall bear interest from the next preceding Interest Payment Date to which
interest has been paid or duly provided for, or if no interest has been paid on
the Debentures, from . The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Debenture
(or one or more Predecessor Debentures) is registered at the Regular Record
Date for such Interest Payment Date. The principal of (and premium, if any) and
interest on this Debenture are payable in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts, at the agency or agencies maintained by the Company
for such purpose; provided, however, that at the option of the Company payment
of interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register. Any interest not
punctually paid or duly provided for shall be payable as provided in the
Indenture.
Reference is made to the further provisions of this Debenture set
forth on the reverse hereof, which shall have the same effect as though fully
set forth at this place.
<PAGE> 2
2
Unless one of the certificates of authentication hereon has been
executed by or on behalf of the Trustee by manual signature, this Debenture
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, J. C. Penney Company, Inc. has caused the execution
hereof in its corporate name by its duly authorized officers.
J.C. PENNEY COMPANY, INC.
By..............................
CHAIRMAN OF THE BOARD
By..............................
SECRETARY
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the % Sinking Fund Debentures Due referred
to in the within-mentioned Indenture.
AS TRUSTEE
By..............................
Authorized Officer
<PAGE> 3
3
(FORM OF ALTERNATE CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENICATION
This is one of the % Sinking Fund Debentures Due referred
to in the within-mentioned Indenture.
AS TRUSTEE
By..............................
Authenticating Agent
By..............................
Authorized Officer
<PAGE> 4
(FORM OF REVERSE OF DEBENTURE)
J. C. PENNEY COMPANY, INC.
% Sinking Fund Debenture Due
This Debenture is one of a duly authorized issue of unsecured
debentures, notes or other evidences of indebtedness of the Company (herein
called the "Securities") of the series hereinafter specified, all issued and to
be issued under an Indenture dated as of April 1, 1994 (herein called the
"Indenture"), between the Company and Bank of America National Trust and
Savings Association, Trustee (herein called the "Trustee", which term includes
any successor Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights thereunder of the Company, the Trustee and the Holders of the
Securities, and the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities, which are unlimited in aggregate
principal amount, may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at different
times, may bear interest (if any) at different rates, may be subject to
different redemption provisions (if any), may be subject to different sinking,
purchase or analogous funds (if any), may be subject to different covenants and
Events of Default and may otherwise vary as in the Indenture provided. This
Debenture is one of a series of the Securities designated as the % Sinking
Fund Debentures Due (herein called the "Debentures"), limited in aggregate
principal amount to $ .
The Debentures may be redeemed, at the option of the Company, as a
whole or from time to time in part, on any date prior to Stated Maturity, upon
not less than 30 nor more than 60 days' prior notice given as provided in the
Indenture, at the following Redemption Prices, expressed in percentages of the
principal amount, together with accrued interest to the Redemption Date:
Percentage Percentage
Year of Principal Year of Principal
Beginning Amount Beginning Amount
- --------- ------------ --------- ------------
and at 100% of the principal amount if redeemed on and after ;provided,
however, that Debentures may not be so redeemed prior to , directly
or indirectly from, or in anticipation of, moneys borrowed at an interest cost
(calculated in accordance with generally accepted financial practice) of less
than % per annum.
<PAGE> 5
2
The Debentures are also subject to redemption through the operation of
the Mandatory and Optional Sinking Funds provided in the Indenture, on
and on each thereafter to and including on notice
as set forth above, at a Sinking Fund Redemption Price equal to 100% of the
principal amount thereof, together with accrued interest to the Redemption Date.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Debenture may be registered on the
Security Register, upon surrender of this Debenture for registration of
transfer at one of the agencies maintained by the Company for such purpose,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar (if other than the
Company) duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Debentures are issuable only as registered Debentures without
coupons in the denminations of $ and any integral multiple thereof.
As provided in the Indenture, Debentures are exchangeable for a like aggregate
principal amount of Debentures of different authorized denominations, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Debenture is registered as the absolute
owner hereof for the purpose of receiving payment as herein provided and for
all other purposes, whether or not this Debenture be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
(Additional covenants, terms or provisions, if any, to be inserted
here as well as any changes in covenants, terms or provisions contained in the
Indenture.)
If an Event of Default with respect to the Debentures shall occur and
be continuing, the principal of all the Debentures may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of any series under the
Indenture at any time by the Company with the consent of the Holders of 66 2/3%
(unless a different percentage is specified with respect to any series of
Securities, in which case, as to such series, the percentage so specified) in
aggregate principal amount of the Outstanding Securities of each series
<PAGE> 6
3
affected by any such amendment or modification. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Debentures at the time Outstanding, on behalf of the
Holders of all the Debentures, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Debenture
shall be conclusive and binding upon such Holder and upon all future Holders of
this Debenture and of any Debenture issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Debenture at the times, places and rate,
and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of (or
premium, if any) or interest on this Debenture, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture or
any indenture supplemental thereto, against any incorporator, stockholder,
officer or director, as such, past, present or future, of the Company or any
successor corporation, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
All terms used in this Debenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE> 1
Exhibit 4(b)(vi)
(FORM OF FACE OF NOTE)
$.......... No...........
J.C. PENNEY COMPANY, INC.
Extendible Note
J. C. Penney Company, Inc., a Delaware Corporation (hereinafter called
the Company), for value received, promises to pay to or registered assigns, the
principal sum of Dollars, on , or on such earlier date as
the principal hereof may become due in accordance with the terms hereof, and to
pay interest on said principal sum, (semi)annually on (and
) of each year, at the rate per annum from time to time in
effect as described below, from the (or the , as the case may
be,) next preceding the date of this Note to which interest has been paid or
duly provided for, unless the date hereof is a date to which interest has been
paid or duly provided for, in which case from the date of this Note, or unless
no interest has been paid on the Notes, in which case from ,
until the principal hereof becomes due and payable, and on any overdue
principal and (to the extent that the payment of such interest shall be legally
enforceable) on any overdue instalment of interest at the rate borne by this
Note during the Interest Period (as hereinafter defined) in which such
principal or interest, as the case may be, became due and payable.
Notwithstanding the foregoing, when there is no existing default in the payment
of interest on the Notes, if the date hereof is after a Regular Record Date,
which shall be the close of business on (or ) (whether or
not a Business Day)(, as the case may be,) next preceding an Interest Payment
Date, and before the next succeeding Interest Payment Date, this Note shall
bear interest from such Interest Payment Date; provided, however, that if the
Company shall default in the payment of interest due on such Interest Payment
Date, then this Note shall bear interest from the next preceding Interest
Payment Date to which interest has been paid or duly provided for, or if no
interest has been paid on the Notes, from . The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note (or
one or more Predecessor Notes) is registered at the Regular Record Date for
such Interest Payment Date. The principal of and interest on this Note are
payable in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts, at the
agency or agencies maintained by the Company for such purpose; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register. Any interest not punctually paid or duly
provided for shall be payable as provided in the Indenture.
Interest on this Note is payable at the rate of % per annum from
through , and thereafter at an interest rate
<PAGE> 2
2
per annum for an Interest Period (as hereinafter defined) determined by the
Company as hereinafter provided. The period during which any particular rate of
interest shall apply is herein called an "Interest Period" (with the initial
Interest Period ending ). Prior to the end of each Interest Period,
the Company shall (unless it has theretofore given notice of redemption of all
the Notes as hereinafter provided) give notice as hereinafter provided
("Interest Period Notice") of the next Interest Period (which shall end on
a selected by the Company but not later than )
and of the rate of interest to be borne by the Notes during such Interest
Period or of the formula, if any, by which the rate of interest to be borne by
the Notes during such Interest Period will be set (such rate to be determined
not later than Business Days prior to the commencement of such
Interest Period). The Company will give each Interest Period Notice to the
Trustee not later than Business Days prior to the end of the then current
Interest Period, and the Trustee will cause such Interest Period Notice to be
mailed to each Holder not later than Business Days prior to the end of
the then-current Interest Period. The Company will cause notice of the
determination of any interest rate pursuant to a formula established by the
Company for an Interest Period to be enclosed with the interest checks mailed
to Holders for the period ending on the following such determination.
If the Company fails to give timely notice of the next succeeding Interest
Period or of the applicable rate or formula therefor, then such Interest Period
will be until of the year immediately following, and the
applicable rate of interest or formula therefor will be the same as that for
the then-current Interest Period. Thereafter, the determination of the
Interest Period and rate of interest shall be made in the manner hereinabove
provided.
The Notes are subject to redemption (or, at the option of the Company,
purchase), at the option of the Holders thereof, on and on
in any subsequent year (up to and including ) corresponding to
the end of an Interest Period, at a price equal to % of the principal
amount thereof, together with interest payable thereon to the date of
redemption or purchase. The Notes are also subject to redemption at the option
of the Company, as described on the reverse side hereof.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
at this place.
Unless one of the certificates of authentication hereon has been
executed by or on behalf of the Trustee by manual signature, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
<PAGE> 3
3
IN WITNESS WHEREOF, J. C. Penney Company, Inc. has caused the
execution hereof in its corporate name by its duly authorized officers.
J.C. PENNEY COMPANY, INC.
By.............................
CHAIRMAN OF THE BOARD
By..............................
SECRETARY
<PAGE> 4
4
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENICATION)
CERTIFICATE OF AUTHENICATION
This is one of the Extendible Notes referred to in the within-mentioned
Indenture.
AS TRUSTEE
By.............................
Authorized Officer
(FORM OF ALTERNATE CERTIFICATE OF AUTHENICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Extendible Notes referred to in the within-mentioned
Indenture.
AS TRUSTEE
BY..............................
Authenticating Agent
By..............................
Authorized Officer
<PAGE> 5
(FORM OF REVERSE OF NOTE)
J. C. PENNEY COMPANY, INC.
Extendible Note
This Note is one of a duly authorized issue of unsecured debentures,
notes or other evidences of indebtedness of the Company (herein called the
"Securities") of the series hereinafter specified, all issued and to be issued
under an Indenture dated as of April 1, 1994 (herein called the "Indenture"),
between the Company and Bank of America National Trust and Savings Association,
Trustee (herein called the "Trustee", which term includes any successor Trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights
thereunder of the Company, the Trustee and the Holders of the Securities, and
the terms upon which the Securities are, and are to be, authenticated and
delivered. The Securities, which are unlimited in aggregate principal amount,
may be issued in one or more series, which different series may be issued in
various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any), may be subject to different covenants and Events of Default and
may otherwise vary as in the Indenture provided. This Note is one of a series
of the Securities designated as the Extendible Notes (herein called the
"Notes"), limited in aggregate principal amount to $ .
The Notes may be redeemed, at the option of the Company, as a whole or
from time to time in part, on any date on or after
and on or prior to at
100% of the principal amount thereof together with accrued interest to the
Redemption Date. Thereafter, the Notes may be redeemed on any
corresponding to the end of an Interest Period and at such other times
during an Interest Period and at such price or prices as shall be established
by the Company by notice not later than Business Days prior to the end of the
then-current Interest Period; provided, however, that the price at which the
Notes may be so redeemed shall not be less than 100% of their principal amount
together with accrued interest to the Redemption Date. Notice of such
redemption terms during an Interest Period shall be given by the Company to the
Trustee and shall be mailed to each Holder with the notice establishing such
Interest Period. If the Company fails to give timely notice of the redemption
terms for an Interest Period, the Notes shall be redeemable at the option of
the Company during such Interest Period only on the
at the end thereof, at 100% of their principal amount together with accrued
interest to the Redemption Date. The Notes, if redeemed in part, will be
redeemed in integral multiples of $ , provided that any Notes to be redeemed
in part will remain outstanding in a principal amount of at least $ .
The Notes may be redeemed upon not less than 30 nor more than 60 days' prior
notice given as provided in the Indenture.
<PAGE> 6
2
The Notes are subject to redemption (or, at the option of the Company,
purchase) as a whole, or from time to time in part, on and on in
any subsequent year (up to and including ) corresponding to the
end of an Interest Period, provided that the principal amount of each Note
which is redeemed or purchased is equal to $ or an integral multiple
thereof and the principal amount of each such Note which remains outstanding is
at least $ , at the option of the Holders thereof at 100% of their
principal amount, together with accrued interest to the date of redemption or
purchase. In order for a Note to be so redeemed or purchased, the Company must
receive at one of the agencies designated by the Company for such purpose, not
less than Business Days, but not earlier than the, prior to the
end of an Interest Period, (i) the Note with the form entitled "Option to Elect
Redemption" on the reverse of the Note duly completed, or (ii) a telegram,
telex, facsimile transmission or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States of America setting forth
the name of the Holder of the Note, the principal amount of the Note, the
amount of the Note to be redeemed or purchased, a statement that the option to
elect redemption is being made thereby and a guarantee that the Note to be
redeemed or purchased with the form entitled "Option to Elect Redemption" on
the reverse of the Note duly completed will be received by the Company not
later than Business Days after the date of such telegram, telex, facsimile
transmission or letter, and the Note with such form duly completed is received
by the Company by such Business Day. Any such notice received by the Company
not less than Business Days prior to the end of an Interest Period shall be
irrevocable. All questions as to the validity, eligibility (including time of
receipt) and acceptance of any Notes for redemption will be determined by the
Company, whose determination shall be final and binding.
All Notes redeemed by the Company at the option of the Holders or at
the option of the Company shall be surrendered to the Trustee for cancelation
and may not be reissued or resold. Any Notes purchased at the option of the
Company in lieu of redemption, upon election by the Holders to have their Notes
redeemed as described herein, may be reissued from time to time by the Company
subject to compliance with applicable laws (including without limitation
Federal and State securities laws).
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the Security
Register, upon surrender of this Note for registration of transfer at one of
the agencies maintained by the Company for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar (if other than Company) duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
<PAGE> 7
3
The Notes are issuable only as registered Notes without coupons in the
denominations of $ and any integral multiple thereof. As provided
in the Indenture, Notes are is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this Note,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the absolute owner hereof
for the purpose of receiving payment as herein provided and for all other
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
(Additional covenants, terms or provisions, if any, to be inserted
here as well as any changes in covenants, terms or provisions contained in the
Indenture.)
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of any series under the
Indenture at any time by the Company with the consent of the Holders of 66 2/3%
(unless a different percentage is specified with respect to any series of
Securities, in which case, as to such series, the percentage so specified) in
aggregate principal amount of the Outstanding Securities of each series
affected by any such amendment or modification. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all the Notes, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, places and rate, and in the coin or
currency, herein prescribed.
<PAGE> 8
4
No recourse shall be had for the payment of the principal of (or
premium, if any) or interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE> 1
- --------------------------------------------------------------------------------
Exhibit 4(b)(vii)
Draft 4/22/94
(Form of Face of Security)
REGISTERED REGISTERED
J. C. PENNEY COMPANY, INC.
MEDIUM-TERM NOTE, SERIES____ CUSIP NO.__________
(Fixed Rate)
UNDER TREASURY REGULATIONS, IT IS POSSIBLE THAT SECURITIES WHICH ARE NOT
ISSUED AT A DISCOUNT BUT WHICH ARE ISSUED BETWEEN A RECORD DATE AND THE RELATED
INTEREST PAYMENT DATE WOULD BE TREATED AS ISSUED AT AN ORIGINAL ISSUE DISCOUNT
BECAUSE INTEREST IS NOT PAID AT FIXED PERIODIC INTERVALS AT A FIXED RATE DURING
THE ENTIRE TERM OF SUCH SECURITIES, WITH THE CONSEQUENCE THAT HOLDERS
(INCLUDING CASH BASIS HOLDERS) WOULD BE REQUIRED TO REPORT INTEREST IN RESPECT
OF SUCH A SECURITY ON A CONSTANT YIELD ACCRUAL BASIS FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES.
(Insert if a Security is to be a Global Security - This Note is a Global
Security within the meaning of the Indenture hereinafter referred to and is
registered in the name of the Depository (as defined below) or a nominee of the
Depository. This Global Security is exchangeable for Notes registered in the
name of a Person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Note (other
than a transfer of this Note as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in such limited
circumstances.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) (the
"Depository") to the Issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of the
Depository and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.)
PRINCIPAL AMOUNT AND CURRENCY
OR CURRENCY UNIT:
DENOMINATIONS
(IF OTHER THAN U.S. DOLLARS OR THE U.S. DOLLAR
DENOMINATIONS SET FORTH ON THE REVERSE):
OPTION TO RECEIVE PAYMENTS IN PAYING AGENT:
SPECIFIED CURRENCY:
YES: ___ NO: ___ EXCHANGE RATE AGENT:
ISSUE DATE:
STATED MATURITY OF SECURITY:
INTEREST RATE: COMPUTATION PERIOD:
INTEREST PAYMENT DATE(S): REGULAR RECORD DATE(S):
REDEMPTION DATE(S): REDEMPTION PERCENTAGE(S):
<PAGE> 2
REDEMPTION DATE(S) REDEMPTION PERCENTAGE(S)
(OPTION OF HOLDER): (OPTION OF HOLDER):
NOTICE PERIOD:
ORIGINAL ISSUE DISCOUNT SECURITY:
If applicable, the following will
be completed solely for the
purpose of applying the United
States federal income tax
original issue discount ("OID")
rules:
TOTAL AMOUNT OF OID:
YIELD TO MATURITY:
INITIAL ACCRUAL PERIOD OID:
OTHER PROVISIONS:
<PAGE> 3
J. C. PENNEY COMPANY, INC., a corporation duly organized under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to (INSERT IF THE SECURITY IS TO BE A GLOBAL
SECURITY - CEDE & Co., as nominee for the Depository)
________________________________________________________________________________
__, or registered assigns, the principal amount specified above (any currency
or currency unit other than U.S. dollars being hereinafter referred to as a
"Specified Currency") on the Stated Maturity specified above and to pay
interest thereon (computed, unless a different Computation Period is specified
above, on the basis of a 360-day year of twelve 30-day months) from and
including the Issue Date specified above (the "Issue Date") or from and
including the most recent Interest Payment Date to and for which interest on
this Security (or any Predecessor Security) has been paid or duly provided to,
but excluding, the Interest Payment Date, on the Interest Payment Date(s)
specified above in each year (each an "Interest Payment Date") and at Maturity,
at the rate per annum equal to the Interest Rate specified above, until the
principal hereof is paid or duly made available for payment; provided, however,
that, unless the Holder hereof is entitled to make, and has made, a Specified
Currency Payment Election (as hereinafter defined) with respect to one or more
such payments, the Company will make all such payments in U.S. dollars in
amounts determined as set forth on the reverse hereof. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more predecessor Securities) is registered at the close of
business on the fifteenth day next preceding such Interest Payment Date, unless
a different Regular Record Date is specified above (the "Regular Record Date");
provided, however, that interest payable at Maturity will be payable to the
person to whom principal shall be payable; and provided, further, that if the
Issue Date is after a Regular Record Date and before the next succeeding
Interest Payment Date the first payment of interest shall be payable on the
second Interest Payment Date following the Issue Date to the person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date immediately preceding such
Interest Payment Date. Any such interest which is payable, but not so
punctually paid or duly provided for, on any Interest Payment Date will
forthwith cease to be payable to the Holder on such Regular Record Date and
such Defaulted Interest may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which this Security may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the principal office of the Paying Agent at________
__________________________________________ or such other office or agency of
the Company maintained by it for that purpose in the Borough of Manhattan, The
City of New York, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts;
provided, however, that payment of the principal of (and premium, if any) and
interest on this Security due will be made in immediately available funds at
such Paying Agent's office or such other office or agency if this Security is
presented to the Paying Agent in time for the Paying Agent to make such
payments in such funds in accordance with its normal procedures; and provided,
further, that, at the option of the Company, payment of interest (other than
interest payable at Maturity) may be made by check mailed to the address of the
Holder as such address shall appear in the Security Register; and provided,
further, that if this Security is denominated in a Specified Currency, the
Holder hereof is entitled to make, and has made, a Specified Currency Payment
Election with respect to such payments, the Exchange Rate Agent is able to
convert such payments as provided below and the Specified Currency is not
unavailable due to the imposition of exchange controls or other circumstances
beyond the control of the Company, then (i) the payment of interest on this
Security will be made in the Specified Currency (or, if such Specified
-3-
<PAGE> 4
Currency is not at the time of such payment legal tender for the payment of
public and private debts, in such other coin or currency of the country which
issued such Specified Currency as at the time of such payment is legal tender
for the payment of such debts) by check drawn upon a bank office located
outside the United States and mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register, and (ii) the
payment of principal (and premium, if any) and interest due at Maturity will be
made in such Specified Currency (or, if applicable, such other coin or
currency) by wire transfer of immediately available funds to an account
maintained by the Holder hereof with a bank office located in the country which
issued the Specified Currency upon presentation of this Security to the Paying
Agent in time for such wire transfer to be made by the Paying Agent in
accordance with its normal procedures. Unless otherwise specified above, if
this Security is denominated in a Specified Currency the Holder hereof may
elect to receive payments of principal of (and premium, if any) and interest in
such Specified Currency (a "Specified Currency Payment Election") by delivery
of a written request (including, in the case of an election with respect to
payments at Maturity, appropriate wire transfer instructions) to the Paying
Agent at its principal office referred to above on or prior to the relevant
Regular Record Date or the sixteenth day prior to Maturity, as the case may be.
Such request shall be in writing (mailed, hand delivered or by facsimile
transmission). A Holder of a Foreign Currency Security may elect to receive
payment in the Specified Currency for all principal (and premium, if any) and
interest payments and need not file a separate election for each payment. Such
election will remain in effect until revoked by written notice to the Paying
Agent, but written notice of any such revocation must be received by the Paying
Agent on or prior to the relevant Regular Record Date or the sixteenth day
prior to Maturity, as the case may be.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
-4-
<PAGE> 5
Unless the certificate of authentication hereon has been executed by
the Paying Agent (as Authenticating Agent) referred to on the reverse hereof by
the manual signature of an authorized signatory, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by manual or facsimile signature under its corporate seal.
J. C. PENNEY COMPANY, INC.
By____________________________
Name:
Title:
(CORPORATE SEAL)
Attest:
_________________________________
Dated:_____________________, 199_
This is one of the Securities
of the Series designated above referred to
in the within-mentioned Indenture
ALTERNATE
CERTIFICATE OF CERTIFICATE OF
AUTHENTICATION OR AUTHENTICATION
as Trustee as Trustee
By______________________________ By____________________________
Authorized Signatory as Authenticating Agent
By____________________________
Authorized Officer
Dated: _________________, 199_
-5-
<PAGE> 6
(Form of Reverse of Security)
This Security is one of a duly authorized issue of securities of the
Company (the "Securities") issued and to be issued in one or more series under
the Indenture, dated as of April 1, 1994 ("Indenture"), between the Company and
Bank of America National Trust and Savings Association, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
Paying Agent and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof, limited to an aggregate
principal amount not to exceed $1,500,000,000 (or if Securities of this series
are to be Original Issue Discount Securities or are to be denominated in one or
more Specified Currencies or with the amount payable in respect of principal of
or any premium or interest to be determined by reference to the value, rate or
price of one or more specified indices ("Indexed Securities"), such principal
amount as shall result in an aggregate initial offering price of Securities
equivalent to not more than $1,500,000,000), which amount may be increased at
the option of the Company if in the future it determines that it may wish to
sell additional Securities. Except as may be otherwise stated on the face
hereof, the Securities of this series are issuable only as registered
Securities, without coupons, in denominations of $100,000 with integral
multiples of $1,000 in excess thereof (or in the case of Securities denominated
in a Specified Currency, in such minimum denomination not less than the
equivalent of $100,000 in such Specified Currency on the basis of the noon
buying rate for cable transfers in The City of New York as certified for
customs purposes by (or, if not so certified, as otherwise determined by) the
Federal Reserve Bank of New York (the "Market Exchange Rate") for such
Specified Currency on the date the Company agrees to issue such Security, and
such greater denomination or denominations as shall be set forth on the face
thereof). The Securities of this series may be issued from time to time in
various principal amounts and currencies or currency units, may mature at
different times, may bear interest at different rates, may be subject to
different redemption provisions, if any, and may otherwise vary. As provided
in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
The Securities are general, direct, unconditional and unsecured
obligations of the Company.
If this Security is designated on the face hereof as an Original Issue
Discount Security, then, notwithstanding anything to the contrary contained in
this Security, upon the redemption or acceleration of Maturity of this Security
there shall be payable, in lieu of the principal amount due at the Stated
Maturity hereof, as specified on the face hereof, an amount equal to the
Amortized Face Amount of this Security. The "Amortized Face Amount" shall be
the amount equal to (a) the issue price of this Security (as defined below),
plus (b) that portion of the difference between the issue price and the
principal amount of this Security that has been amortized at the Stated Yield
(as defined below) of this Security (computed in accordance with generally
accepted United States bond yield computation principles) at the date as of
which the Amortized Face Amount is calculated, but in no event shall the
Amortized Face Amount exceed the principal amount of this Security due at the
Stated Maturity hereof. As used in the previous sentence "issue price" means
the principal amount due at the Stated Maturity hereof less the Total Amount of
OID of this Security specified on the face hereof and the "Stated Yield" means
the Yield to Maturity specified on the face hereof (or if not so specified, the
yield to maturity compounded semi-annually and computed in accordance with
generally accepted
-6-
<PAGE> 7
United States bond yield computation principles) for the period from the Issue
Date to the Stated Maturity on the basis of the issue price and such principal
amount.
If this Security is denominated in a Specified Currency, unless the
Holder hereof is entitled to make, and has made, a Specified Currency Payment
Election with respect to such payments as provided on the face hereof, the
Holder of this Security shall receive payments of principal (and premium, if
any) and interest in U.S. dollars at an exchange rate based on the highest bid
quotation in The City of New York received by the Exchange Rate Agent (who,
unless otherwise specified on the face hereof, shall be the Paying Agent) at
approximately _____ a.m., New York City time, on the second Market Day with
respect to this Security preceding the applicable payment date from three
recognized foreign exchange dealers (one of which may be the Exchange Rate
Agent) selected by the Exchange Rate Agent and approved by the Company for the
purchase by the quoting dealer of the Specified Currency for U.S. dollars for
settlement on such payment date in the aggregate amount of such Specified
Currency payable to all Holders of Securities of this series denominated in
such Specified Currency and scheduled to receive U.S. dollar payment on such
payment date and at which the applicable dealer commits to execute a contract.
"Market Day" means (i) with respect to any Security of this series denominated
in U.S. dollars, any day that is a Business Day in The City of New York, and
(ii) with respect to any Security of this series denominated in a Specified
Currency, any Business Day in The City of New York that is also a Business Day
in the capital city of the country of the Specified Currency or, with respect
to a Security of this series denominated in European Currency Units, in
Brussels. All currency exchange costs incurred by the Company in converting a
Specified Currency into U.S. dollars in order to make payments hereon will be
borne by the Holder of this Security by deductions from such payments. If such
bid quotations are not available, or if a Specified Currency Payment Election
has been made with respect to such payments, payments will be made in the
Specified Currency (or, if such Specified Currency is not at the time of such
payment legal tender for the payment of public and private debts, such other
coin or currency of the country which issued such Specified Currency as at the
time of such payment is legal tender for the payment of such debts); provided,
however, that if such Specified Currency (or, if applicable, such other coin or
currency) is unavailable due to the imposition of exchange controls or other
circumstances beyond the Company's control, the Company will be entitled to
make payments in U.S. dollars on the basis of the Market Exchange Rate for such
Specified Currency (or, if applicable, such other coin or currency) on the
second Market Day prior to such payment or, if such Market Exchange Rate is not
then available, on the basis of the most recently available Market Exchange
Rate or as otherwise indicated hereon.
(INSERT SINKING FUND PROVISIONS, IF APPLICABLE)
If one or more Redemption Dates (or ranges of Redemption Dates) is
specified on the face hereof, this Security is subject to redemption upon not
less than 30 days' notice by mail, on any such date (or during any such range),
as a whole or from time to time in part, at the election of the Company, at a
Redemption Price determined as provided in the next succeeding sentence,
together with accrued interest to the Redemption Date, but interest instalments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holder hereof (or one or more Predecessor Securities) of record at the
close of business on the Regular Record Dates referred to on the face hereof,
all as provided in the Indenture. If applicable, the "Redemption Price" for
any such redemption shall be the amount determined by multiplying the
Redemption Percentage specified on the face hereof with respect to the relevant
Redemption Date (or range of such dates), by the portion of the principal
amount hereof (or, if this Security is an Original Issue Discount Security, the
portion of the Amortized Face Amount hereof) to be redeemed; provided, however,
that in no event shall the Redemption Price be less than 100% of the portion of
the principal amount hereof (or, if this Security is an Original Issue Discount
Security, the portion of the Amortized Face Amount hereof) to be redeemed.
-7-
<PAGE> 8
If one or more Redemption Dates (Option of Holder) (or ranges of such
dates) is specified on the face hereof, this Security is subject to redemption
on any such date (or during any such range) or, if such date is not a Market
Day, on the first Market Day following such date, as a whole or from time to
time in part, at the election of the Holder hereof, at a Redemption Price
determined as provided in the fifth succeeding sentence together with accrued
interest to the Redemption Date, but interest instalments whose Stated Maturity
is on or prior to the Redemption Date will be payable to the Holder hereof of
record at the close of business on the Regular Record Date referred to on the
face hereof, all as provided in the Indenture. Such election shall be effected
by the Holder hereof delivering to the Company at the principal office of the
Paying Agent at _____________________________________________ not less than 30
nor more than 60 days prior to the date on which this Security is to be
redeemed, or during such other Notice Period specified on the face hereof, a
notice requesting such redemption in the form described below and specifying
the date upon which this Security is to be redeemed. Any notice given by a
Holder pursuant to this paragraph shall consist of either (i) this Security
with the form entitled "Option to Elect Redemption" set forth at the end of
this Security duly completed or (ii) a telegram, facsimile transmission or a
letter from a member of a national securities exchange, or the National
Association of Securities Dealers, Inc. or a commercial bank or trust company
in the United States setting forth the name of the Holder hereof, the principal
amount of this Security, the principal amount of this Security to be redeemed,
the certificate number or a description of the terms of this Security, a
statement that the option to elect redemption is being exercised thereby and a
guarantee that this Security, together with the duly completed form entitled
"Option to Elect Redemption" below, will be received by the Paying Agent not
later than the fifth Business Day after the date of such telegram, facsimile
transmission or letter; provided, however, that, unless otherwise agreed, such
telegram, facsimile transmission or letter shall only be effective if this
Security and form duly completed are received by the Paying Agent by such fifth
Business Day. Exercise of the redemption option by the Holder hereof will be
irrevocable. If applicable, the "Redemption Price" for any such redemption
shall be determined by multiplying the Redemption Percentage (Option of Holder)
specified on the face hereof with respect to the relevant Redemption Date
(Option of Holder) (or range of such dates) by the portion of the principal
amount hereof (or, if this Security is an Original Issue Discount Security, the
portion of the Amortized Face Amount hereof) to be redeemed, together with
interest accrued thereon to the Redemption Date; provided, however, that in no
event shall the Redemption Price be less than 100% of the portion of the
principal amount hereof (or, if this Security is an Original Issue Discount
Security, the portion of the Amortized Face Amount hereof) to be redeemed.
Notice of redemption having been given as aforesaid, this Security (or
the portion of the principal amount hereof so to be redeemed) shall, on the
Redemption Date, become due and payable at the Redemption Price herein
specified, and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) shall cease to bear
interest. In the case of any partial redemption at the election of the Company
of Securities of this series, the Securities of a particular tenor to be
redeemed shall be selected by the Paying Agent not more than 60 days prior to
the Redemption Date by such method as the Paying Agent shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal amount of Securities. In the event of any redemption of this
Security in part only, a new Security or Securities of this series of like
tenor for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof, provided that such unredeemed
portion shall not be less than the minimum denomination of this Security.
The Indenture contains provisions for defeasance and covenant
defeasance at any time of the entire indebtedness on this Security upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the Securities of this series
(or, in the case of Original Issue Discount Securities the
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<PAGE> 9
Amortized Face Amount thereof) may be declared due and payable in the manner
and with the effect provided in the Indenture. Upon payment (i) of the amount
of principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that the payment of
such interest shall be legally enforceable), all of the Company's obligations
in respect of the payment of the principal of and interest, if any, on the
Securities of this series shall terminate.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of 66 2/3% in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any)
and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
or her attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein set forth, the Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same. In the event of any redemption at the election of the Company, neither
the Trustee nor the Paying Agent shall be required to (i) issue, register the
transfer of or exchange Securities of this series of like tenor during a period
beginning at the opening of business 15 days before any selection of Securities
of this series to be redeemed and ending at the close of business on the day of
mailing of the relevant notice of redemption, nor (ii) register the transfer of
or exchange any Security, or portion thereof, called for redemption, except the
unredeemed portion of any Security being redeemed in part. Following the
exercise of a redemption option by the Holder hereof, neither the Trustee nor
the Paying Agent shall be required to issue, register the transfer of or
exchange that portion of this Security with respect to which such option has
been exercised.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Notes of this series may be issued in the form of one or more
Global Securities to The Depository Trust Company as depository for the Global
Securities of this series (the "Depository") or
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<PAGE> 10
its nominee and registered in the name of the Depository or such nominee. If
the face of this Security contains a legend indicating that this Security is a
Global Security so registered, the transfer and exchange hereof is subject to
the additional limitations set forth in such legend.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee, the Paying Agent and any agent of the
Company, the Trustee or the Paying Agent may treat the Person in whose name
this Security is registered as the owner hereof for all purposes, whether or
not this Security is overdue, and neither the Company, the Trustee, the Paying
Agent nor any such agent shall be affected by notice to the contrary.
Any funds deposited with the Paying Agent and remaining unclaimed for
two years after the date upon which the last payment of principal or interest
on any Note to which such deposit relates shall have become due and payable,
shall be repaid to the Company by the Paying Agent on demand, and the holder of
any Note to which such deposit related entitled to receive payment shall
thereafter look only to the Company for the payment thereof and all liability
of the Paying Agent with respect to such money shall thereupon cease.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
-10-
<PAGE> 11
_________________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - ______________ Custodian ________________
(Custodian) (Minor)
Under Uniform Gifts to Minors Act (___________)
(State)
Additional abbreviations may also be used though not in the above list.
_________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
________________________________________________________________________________
(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE)
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing ______________________________________________________________
attorney to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:__________________ X_______________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or
any change whatever.
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<PAGE> 12
OPTION TO ELECT REDEMPTION
The undersigned hereby irrevocably requests and instructs J.
C. Penney Company, Inc. to redeem the within Security (or portion thereof
specified below) pursuant to its terms at the Redemption Price, to the
undersigned at
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF THE
UNDERSIGNED)
________________________________________________________________________________
________________________________________________________________________________
If less than the entire principal amount of the within
Security is to be redeemed, specify the portion thereof which the Holder elects
to have redeemed:
__________________________________________________________________________; and
specify the denomination or denominations (which shall not be less
than the minimum authorized denomination) of the Securities to be issued to the
Holder for the portion of the within Security not being redeemed (in the
absence of any such specification, one such Security will be issued for the
portion not being redeemed):
_______________________________________________________________________________.
Dated:_____________ ______________________________
NOTICE: This signature on this
Option to Elect Redemption must
correspond with the name as written
upon the face of the within instrument
in every particular without alteration
or enlargement.
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<PAGE> 1
Exhibit 4(b)(viii)
Draft 4/22/94
(Form of Face of Security)
REGISTERED REGISTERED
J. C. PENNEY COMPANY, INC.
MEDIUM-TERM NOTE, SERIES___ CUSIP ______
(Floating Rate)
UNDER TREASURY REGULATIONS, IT IS POSSIBLE THAT SECURITIES WHICH ARE NOT
ISSUED AT A DISCOUNT BUT WHICH ARE ISSUED BETWEEN A RECORD DATE AND THE RELATED
INTEREST PAYMENT DATE WOULD BE TREATED AS ISSUED AT AN ORIGINAL ISSUE DISCOUNT
BECAUSE INTEREST IS NOT PAID AT FIXED PERIODIC INTERVALS AT A FIXED RATE DURING
THE ENTIRE TERM OF SUCH SECURITIES, WITH THE CONSEQUENCE THAT HOLDERS
(INCLUDING CASH BASIS HOLDERS) WOULD BE REQUIRED TO REPORT INTEREST IN RESPECT
OF SUCH A SECURITY ON A CONSTANT YIELD ACCRUAL BASIS FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES.
(INSERT IF THE SECURITY IS TO BE A GLOBAL SECURITY -- This Note is a Global
Security within the meaning of the Indenture hereinafter referred to and is
registered in the name of the Depository (as defined below) or a nominee of the
Depository. This Global Security is exchangeable for Notes registered in the
name of a Person other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Note (other
than a transfer of this Note as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in such limited
circumstances.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) (the
"Depository") to the Issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of the
Depository and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.)
PRINCIPAL AMOUNT AND CURRENCY
OR CURRENCY UNIT:
DENOMINATIONS
(IF OTHER THAN U.S. DOLLARS OR THE U.S. DOLLAR
DENOMINATIONS SET FORTH ON THE REVERSE):
OPTION TO RECEIVE PAYMENT PAYING AGENT:
IN SPECIFIED CURRENCY:
YES: ___ NO: ___ EXCHANGE RATE AGENT:
ISSUE DATE: STATED MATURITY OF SECURITY:
INTEREST RATE BASIS: COMPUTATION PERIOD:
<PAGE> 2
INTEREST PAYMENT DATE(S): REGULAR RECORD DATE(S):
INDEX MATURITY: SPREAD (PLUS OR MINUS):
INITIAL INTEREST RATE: SPREAD MULTIPLIER:
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE:
INTEREST PAYMENT PERIOD INTEREST PAYMENT MONTH(S):
(monthly, quarterly,
semi-annually or annually):
INTEREST RESET PERIOD INTEREST RESET MONTH(S):
(daily, weekly, monthly, quarterly,
semi-annually or annually):
INTEREST DETERMINATION DATE(S):
CALCULATION DATE: CALCULATION AGENT:
INTEREST RESET DATE(S):
REDEMPTION DATE(S): REDEMPTION PERCENTAGE(S):
REDEMPTION DATE(S) REDEMPTION PERCENTAGE(S)
(OPTION OF HOLDER): (OPTION OF HOLDER):
NOTICE PERIOD:
-2-
<PAGE> 3
ORIGINAL ISSUE DISCOUNT SECURITY:
If applicable, the following will be
completed solely for the purpose of
applying the United States federal income
tax original issue discount ("OID") rules:
TOTAL AMOUNT OF OID:
YIELD TO MATURITY:
INITIAL ACCRUAL PERIOD OID:
OTHER PROVISIONS:
J. C. PENNEY COMPANY, INC., a corporation duly organized under the laws
of the State of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to (INSERT IF THE SECURITY IS TO BE A GLOBAL
SECURITY -- CEDE & Co., as nominee for the Depository) (_____________________
_____________________________________________________), or registered assigns,
the principal amount specified above (any currency or currency unit other than
U.S. dollars being hereinafter referred to as a "Specified Currency") on the
Stated Maturity specified above and to pay interest thereon, from and including
the Issue Date specified above (the "Issue Date") or from and including the
most recent Interest Payment Date to and for which interest on this Security
(or any Predecessor Security) has been paid or duly provided to, but excluding,
the Interest Payment Date (as hereinafter defined) (or, if the Interest Reset
Period specified above (the "Interest Reset Period") is (daily or) weekly, from
and including the Issue Date or from and including the day following the most
recent Regular Record Date with respect to and for which interest has been paid
or duly provided, as the case may be, to, but excluding, the day following the
Regular Record Date immediately preceding such Interest Payment Date), at a
rate per annum equal to the Initial Interest Rate specified above (the "Initial
Interest Rate") until the first Interest Reset Date (as defined on the reverse
hereof) following the Issue Date and thereafter at a rate determined in
accordance with the provisions on the reverse hereof under the heading
"Determination of Commercial Paper Rate", "Determination of Prime Rate",
"Determination of CD Rate", "Determination of Federal Funds Effective Rate",
"Determination of LIBOR" or "Determination of Treasury Rate", (or other rate)
depending upon whether the Interest Rate Basis specified above is Commercial
Paper Rate, Prime Rate, CD Rate, Federal Funds Effective Rate, LIBOR or
Treasury Rate (or other rate) until the principal hereof is paid or duly made
available for payment; provided, however, that, unless the Holder hereof is
entitled to make, and has made, a Specified Currency Payment Election (as
hereinafter defined) with respect to one or more such payments, the Company
will make all such payments in respect of this Security in U.S. dollars in
amounts determined as set forth on the reverse hereof. Such interest shall be
payable by the Company monthly, quarterly, semi-annually or annually as
specified above under "Interest Payment Period" and, unless otherwise specified
above under "Interest Payment Date(s)", such interest shall be payable by the
Company on the third Wednesday of the month or months specified above under
"Interest Payment Month(s)" in each year (or if any such day is not a Market
Day (as defined on the reverse hereof) with respect to this Security, on the
next succeeding Market Day with respect to this Security or, if the Interest
Rate Basis specified above is LIBOR and the next succeeding such Market Day
falls in the next calendar month, the next preceding such Market Day) (each
date so specified above or, if none is so specified, determined as herein
provided, an "Interest Payment Date") and at Maturity. The
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<PAGE> 4
interest so payable, and punctually paid or duly provided for, on any such
Interest Payment Date will be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the fifteenth day (whether or not a Market Day) next preceding such Interest
Payment Date, unless a different Regular Record Date is specified above (the
"Regular Record Date"); provided, however, that interest payable at Maturity
will be payable to the Person to whom principal shall be payable; and provided,
further, that if the Issue Date is after a Regular Record Date and before the
next succeeding Interest Payment Date the first payment of interest shall be
payable on the second Interest Payment Date following the Issue Date to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date immediately
preceding such Interest Payment Date. Any such interest which is payable, but
not so punctually paid or duly provided for, on any Interest Payment Date will
forthwith cease to be payable to the Holder on such Regular Record Date and
such Defaulted Interest may either be paid to the Person in whose name this
Security (or one or more predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which this Security may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) or interest on this
Security will be made at the principal office of the Paying Agent at _________
______________ , or such other office or agency of the Company maintained by it
for that purpose in the Borough of Manhattan, The City of New York, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
payment of the principal of (and premium, if any) and interest on this Security
due will be made in immediately available funds at such Paying Agent's office
or such other office or agency if this Security is presented to the Paying
Agent in time for the Paying Agent to make such payments in accordance with its
normal procedures; and provided, further, that at the option of the Company
payment of interest (other than interest payable at Maturity) may be made by
check and mailed to the address of the Holder as such address shall appear in
the Security Register; and provided, further, that if this Security is
denominated in a Specified Currency, the Holder hereof is entitled to make, and
has made, a Specified Currency Payment Election with respect to such payments,
the Exchange Rate Agent is able to convert such payments as provided below and
the Specified Currency is not unavailable due to the imposition of exchange
controls or other circumstances beyond the control of the Company, then (i) the
payment of interest on this Security will be made in the Specified Currency
(or, if such Specified Currency is not at the time of such payment legal tender
for the payment of public and private debts, in such other coin or currency of
the country which issued such Specified Currency as at the time of such payment
is legal tender for the payment of such debts) by check drawn upon a bank
office located outside the United States and mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register,
and (ii) payment of principal (and premium, if any) and interest due at
Maturity will be made in such Specified Currency (or, if applicable, such other
coin or currency) by wire transfer of immediately available funds to an account
maintained by the Holder hereof with a bank office located in the country which
issued the Specified Currency upon presentation of this Security to the Paying
Agent in time for such wire transfer to be made by the Paying Agent in
accordance with its normal procedures. Unless otherwise specified above, if
this Security is denominated in a Specified Currency, the Holder hereof may
elect to receive payments of principal of (and premium, if any) and interest on
this Security in such Specified Currency (a "Specified Currency Payment
Election") by delivery of a written request (including, in the case of an
election with respect to payments at Maturity, appropriate wire transfer
instructions) to the Paying Agent at its principal office referred to above on
or prior to the relevant Regular Record Date or the sixteenth day prior to
Maturity, as the case may be. Such request shall be in writing (mailed, hand
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<PAGE> 5
delivered or by facsimile transmission). A Holder of a Foreign Currency
Security may elect to receive payment in the Specified Currency for all
principal (and premium, if any) and interest payments and need not file a
separate election for each payment. Such election will remain in effect until
revoked by written notice to the Paying Agent, but written notice of any such
revocation must be received by the Paying Agent on or prior to the relevant
Regular Record Date or the sixteenth day prior to Maturity, as the case may be.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Paying Agent (as Authenticating Agent) referred to on the reverse hereof by the
manual signature of an authorized signatory, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by manual or facsimile signature under its corporate seal.
J. C. PENNEY COMPANY, INC.
(CORPORATE SEAL)
By______________________________
Name:
Title:
Attest:
____________________________________
Dated: ____________________, 199___
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<PAGE> 6
This is one of the Securities
of the Series referred to
in the within-mentioned Indenture
ALTERNATE
CERTIFICATE OF CERTIFICATE OF
AUTHENTICATION OR AUTHENTICATION
, as Trustee , as Trustee
By______________________________ By CHEMICAL BANK,
Authorized Signatory as Authenticating Agent
By _________________________
Authorized Officer
-6-
<PAGE> 7
(Form of Reverse of Security)
This Security is one of a duly authorized issue of securities of the
Company ("Securities") issued and to be issued in one or more series under the
Indenture, dated as of April 1, 1994 ("Indenture"), between the Company and
Bank of America National Trust and Savings Association, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
Paying Agent and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof, limited to an aggregate
principal amount not to exceed $1,500,000,000 (or, if Securities of this series
are to be Original Issue Discount Securities or are to be denominated in one or
more Specified Currencies or with the amount payable in respect of principal of
or any premium or interest to be determined by reference to the value, rate or
price of one or more specified indices ("Indexed Securities"), such principal
amount as shall result in an aggregate initial offering price of Securities
equivalent to no more than $1,500,000,000), which amount may be increased at
the option of the Company if in the future it determines that it may wish to
sell additional Securities. Except as otherwise may be stated on the face
hereof, the Securities of this series are issuable only as registered
Securities, without coupons, in denominations of $100,000 with integral
multiples of $1,000 in excess thereof (or in the case of Securities denominated
in a Specified Currency, in such minimum denomination not less than the
equivalent of $100,000 in such Specified Currency on the basis of the noon
buying rate for cable transfers in The City of New York as certified for
customs purposes by (or, if not so certified, as otherwise determined by) the
Federal Reserve Bank of New York (the "Market Exchange Rate") for such
Specified Currency on the date the Company agrees to issue such Security and
such greater denomination or denominations as shall be set forth on the face
thereof). The Securities of this series may be issued from time to time in
various principal amounts and currencies or currency units, may mature at
different times, may bear interest at different rates, may be subject to
different redemption provisions, if any, and may otherwise vary. As provided
in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
The Securities are general, direct, unconditional and unsecured
obligations of the Company.
Accrued interest hereon shall be calculated by multiplying the principal
amount specified on the face hereof by an accrued interest factor. Such
accrued interest factor shall be computed by adding the interest factor
calculated for each day in the period for which accrued interest is being
calculated. The interest factor (expressed as a decimal rounded upwards, if
necessary, as described below) for each such day shall be computed by dividing
the interest rate (expressed as a decimal rounded upwards, if necessary, as
described below) applicable to such day by 360, if the Interest Rate Basis
specified on the face hereof is the Commercial Paper Rate, Prime Rate, CD Rate,
Federal Funds Effective Rate or LIBOR, by the actual number of days in the year
(365 or 366, as the case may be) if the Interest Rate Basis specified on the
face hereof is the Treasury Rate, or by the number of days in the Computation
Period specified on the face hereof. Except as otherwise provided herein, all
percentages resulting from any calculation with respect to this Security will
be rounded, if necessary, to the nearest one-hundred thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655) and 9.876544%
(or .09876544) being rounded to 9.87654% (or .0987654)), and all dollar amounts
and all amounts in Specified Currencies used in or resulting from such
calculations will be rounded to the
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<PAGE> 8
nearest cent, or, if this Security is a Foreign Currency Security, the nearest
unit, respectively (with one-half cent and one-half unit being rounded
upwards).
The rate of interest on this Security will be reset daily, weekly,
monthly, quarterly, semi-annually or annually, as specified on the face hereof
under Interest Reset Period (each date upon which interest is so reset as
provided below being hereinafter referred to as an "Interest Reset Date"), and
the interest rate in effect on any day shall be (a) if such day is an Interest
Reset Date, the interest rate for such Interest Reset Date or (b) if such day
is not an Interest Reset Date the interest rate for the immediately preceding
Interest Reset Date; provided, however, that (i) the interest rate in effect
from the Issue Date of this Security (or one or more Predecessor Securities) to
but excluding the first Interest Reset Date will be the Initial Interest Rate
and (ii) the interest rate in effect for the ten calendar days immediately
prior to Maturity of this Security will be that in effect on the tenth calendar
day preceding such Maturity. Notwithstanding the foregoing, the interest rate
hereon shall not be greater than the Maximum Interest Rate, if any, or less
than the Minimum Interest Rate, if any, specified on the face hereof and in no
event shall be higher than the maximum rate permitted by New York law, as the
same may be modified by United States law of general application. Unless
otherwise specified on the face hereof and except as provided in the next
succeeding sentence, the Interest Reset Date with respect to this Security will
be, if the Interest Reset Period specified on the face hereof is daily, each
Market Day (as defined below); if the Interest Reset Period specified on the
face hereof is weekly (unless the Interest Rate Basis specified on the face
hereof is the Treasury Rate), the Wednesday of each week; if the Interest Reset
Period specified on the face hereof is weekly and the Interest Rate Basis
specified on the face hereof is the Treasury Rate, except as otherwise provided
below, the Tuesday of each week; if the Interest Reset Period specified on the
face hereof is monthly, the third Wednesday of each month; if the Interest
Reset Period specified on the face hereof is quarterly, the third Wednesday of
each March, June, September and December; if the Interest Reset Period
specified on the face hereof is semi-annually, the third Wednesday of two
months in each year specified under "Interest Reset Month(s)" on the face
hereof; and if the Interest Reset Period specified on the face hereof is
annually, the third Wednesday of the month in each year specified under
"Interest Reset Month(s)" on the face hereof. If, pursuant to the preceding
sentence, any Interest Reset Date would otherwise be a day that is not a Market
Day with respect to this Security, the Interest Reset Date shall be the next
succeeding day that is a Market Day with respect to this Security, except that
if the Interest Rate Basis specified on the face hereof is LIBOR and the next
succeeding Market Day falls in the next succeeding calendar month, such
Interest Reset Date shall be the immediately preceding Market Day. Subject to
applicable provisions of law and except as specified herein, on each Interest
Reset Date the rate of interest on this Security shall be the rate determined
in accordance with the provisions of the applicable heading below.
"Market Day" means (i) with respect to any Security of this series
denominated in U.S. dollars the rate of interest on which is determined other
than in accordance with the provisions of the heading "Determination of LIBOR"
above, any day that is a Business Day in The City of New York, (ii) with
respect to any Security of this series denominated in U.S. dollars, the rate of
interest on which is determined in accordance with the provisions of the
heading "Determination of LIBOR" above, any Business Day in The City of New
York on which dealings in deposits in U.S. dollars are transacted in the London
interbank market and (iii) with respect to any Security of this series
denominated in a Specified Currency, any Business Day in The City of New York
that is also a Business Day in the capital city of the country of the Specified
Currency or, with respect to a Security of this series denominated in European
Currency Units, in Brussels.
Determination of Commercial Paper Rate. If the Interest Rate Basis
specified on the face hereof is the Commercial Paper Rate, the interest rate
with respect to this Security for any Interest Reset Date shall equal (a) the
Money Market Yield (calculated as described below) of the rate on the second
Market Day with respect to this Security immediately preceding such Interest
Reset Date (the
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<PAGE> 9
"Commercial Paper Interest Determination Date") for commercial paper having the
Index Maturity specified on the face hereof, (i) as published in "Statistical
Release H.15(519), Selected Interest Rates", or any successor publication
published by the Board of Governors of the Federal Reserve System
("H.15(519)"), under the heading "Commercial Paper", or (ii) if such rate is
not so published prior to 9:00 a.m., New York City time, on the Calculation
Date pertaining to such Commercial Paper Interest Determination Date, then as
published in "Composite 3:30 p.m. Quotations for U.S. Government Securities",
or any successor publication published by the Federal Reserve Bank of New York
("Composite Quotations"), under the heading "Commercial Paper", or (b) if such
rate is not published in either H.15(519) or Composite Quotations by 3:00 p.m.,
New York City time, on such Calculation Date, the Money Market Yield of the
arithmetic mean, as calculated by the Calculation Agent on such Calculation
Date, of the offered rates, as of 11:00 a.m., New York City time, on such
Commercial Paper Interest Determination Date, of three leading dealers of
commercial paper in The City of New York selected by the Calculation Agent for
commercial paper having the Index Maturity specified on the face hereof placed
for an industrial issuer whose bond rating is "AA", or the equivalent, from a
nationally recognized rating agency, in each of the above cases adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof, or
by multiplication by the Spread Multiplier, if any, specified on the face
hereof; provided, however, that if such dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Commercial
Paper Rate shall be the Commercial Paper Rate in effect on such Commercial
Paper Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage rounded
upwards, if necessary, to the next higher one- hundred thousandth of a
percentage point), calculated in accordance with the following formula:
D x 360
Money Market Yield = -------------------- X 100,
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
Determination of Prime Rate. If the Interest Rate Basis specified on
the face hereof is the Prime Rate, the Interest Rate with respect to any Prime
Rate, the Interest Rate with respect to this Security for any Interest Reset
Date shall equal (a) the rate on the second Market Day with respect to this
Security immediately preceding such Interest Reset Date (the "Prime Rate
Interest Determination Date") as published in H.15(519) under the heading "Bank
Prime Loan"; (b) if such rate is not so published prior to 9:00 a.m., New York
City time, on the Calculation Date pertaining to such Prime Rate Interest
Determination Date, the arithmetic mean, as calculated by the Calculation Agent
on such Calculation Date, of the rates of interest publicly announced by each
bank that appears on the Reuters Screen NYMF Page (or such other equivalent
page appearing on another service mutually agreed upon between the Calculation
Agent and the Issuer) as such bank's prime rate or base lending rate as in
effect for that Prime Rate Interest Determination Date, (c) if fewer than four
such rates but more than one such rate appear on the Reuters Screen NYMF Page
for that Prime Rate Interest Determination Date, the Prime Rate will be the
arithmetic mean, as calculated by the Calculation Agent, of the prime rates
quoted on the basis of the actual number of days in the year divided by a
360-day year as of the close of business on such Prime Rate Interest
Determination Date by four major money center banks in The city of New York
selected by the Calculation Agent, and (d) if fewer than two quotations are
provided, the Prime Rate shall be determined on the basis of the rates
furnished in The City of New York by the appropriate number of substitute banks
or trust companies organized and doing business under the laws of the United
States, or any State thereof, having total equity capital of at least $500
million and being subject to supervision or examination by Federal or State
authority,
-9-
<PAGE> 10
selected by the Calculation Agent to provide such rate or rates in each of the
above cases adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, or by multiplication of the Spread Multiplier, if
any, specified on the face hereof; provided, however, that if the banks
selected as aforesaid are not quoting as mentioned in this sentence, the Prime
Rate will be the Prime Rate in effect on such Prime Rate Interest Determination
Date.
Determination of CD Rate. If the Interest Rate Basis specified on the
face hereof is the CD Rate, the Interest Rate with respect to any Interest
Reset Date shall equal (a) the rate on the second Market Day with respect to
this Security immediately preceding such Interest Reset Date (the "CD Rate
Interest Determination Date") for negotiable certificates of deposit having the
Index Maturity specified on the face hereof, (i) as published in H.15(519)
under the heading "CDs (Secondary Market)", or (ii) such rate is not published
prior to 3:00 p.m., New York City time, on the Calculation Date pertaining to
such CD Rate Interest Determination Date, then as published in Composite
Quotations under the heading "Certificates of Deposit", or (b) if such rate is
not yet published in either H.15(519) or Composite Quotations by 3:00 p.m., New
York City time, on such Calculation Date the arithmetic mean, as calculated by
the Calculation Agent, of the secondary market offered rates, as of 10:00 a.m.,
New York City time, on such CD Rate Interest Determination Date, of three
leading nonbank dealers of negotiable U.S. dollar certificates of deposit in
The City of New York selected by the Calculation Agent for negotiable
certificates of deposit of major United States money market banks with a
remaining maturity closest to the Index Maturity specified on the face hereof
in a denomination of $5,000,000 in each of the above cases adjusted by the
addition or subtraction of the Spread, if any, specified on the fact hereof, or
by multiplication of the Spread Multiplier, if any, specified on the face
hereof; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the CD Rate
will be the CD Rate in effect on such CD Rate Interest Determination Date.
Determination of Federal Funds Effective Rate. If the Interest Rate
Basis specified on the face hereof is the Federal Funds Effective Rate, the
interest rate with respect to this Security for any Interest Reset Date shall
equal (a) the rate on the second Market Day with respect to this Security
immediately preceding such Interest Reset Date (the "Federal Funds Effective
Interest Determination Date") for Federal Funds having the Index Maturity
specified on the face hereof (i) as published in H.15(519) under the heading
"Federal Funds (Effective)" or (ii) if such rate is not so published prior to
3:00 p.m., New York City time, on the Calculation Date pertaining to such
Federal Funds Effective Interest Determination Date, then as published in
Composite Quotations under the heading "Federal Funds/Effective Rate" or (b) if
by 3:00 p.m., New York City time, on such Calculation Date such rate is not yet
published in either H.15(519) or Composite Quotations, the arithmetic mean, as
calculated by the Calculation Agent on such Calculation Date, of the rates, as
of 11:00 a.m., New York City time, on such Federal Funds Effective Interest
Determination Date, for the last transaction in overnight Federal Funds
arranged by three leading brokers of Federal Funds transactions in The City of
New York selected by the Calculation Agent, in each of the above cases adjusted
by the addition or subtraction of the Spread, if any, specified on the face
hereof, or by multiplication by the Spread Multiplier, if any, specified on the
fact hereof; provided, however, that if the brokers selected as aforesaid by
the Calculation Agent are not quoting as mentioned in this sentence, the
Federal Funds Effective Rate will be the Federal Funds Effective Rate in effect
on such Federal Funds Effective Interest Determination Date.
Determination of LIBOR. If the Interest Rate Basis specified on the
face hereof is LIBOR, the interest rate with respect to this Security for any
Interest Reset Date shall be determined by the Calculation Agent in accordance
with the following provisions:
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<PAGE> 11
(i) On the second London Market Day prior to such
Interest Reset Date (a "LIBOR Interest Determination Date"), the
Calculation Agent will determine LIBOR on the basis of the
arithmetic mean of the offered rates for deposits of not less
than U.S.$1,000,000 having the Index Maturity specified on the
face hereof, commencing on the second London Market Day (as
defined below) immediately following such LIBOR Interest
Determination Date, which appear on the display designated as
page "LIBOR" on the Reuters Monitor Money Rates Service (or such
other page as may replace the LIBO page on that service or any
other service mutually agreed upon between the Calculation Agent
and the Issuer for the purpose of displaying London interbank
offered rates of major banks) (the "Reuters Screen LIBO Page") as
of 11:00 a.m., London time, on that LIBOR Interest Determination
Date, adjusted by the addition or subtraction of the Spread, if
any, specified on the face hereof, or by multiplication by the
Spread Multiplier, if any, specified on the face hereof;
provided, however, that if fewer than two such offered rates so
appear, LIBOR for such LIBOR Interest Determination Date will be
determined as described in (ii) below.
(ii) If on any LIBOR Interest Determination Date fewer
than two offered rates appear on the Reuters Screen LIBO Page,
LIBOR will be determined on the basis of the rates at
approximately 11:00 a.m., London time, on such LIBOR Interest
Determination Date at which deposits in U.S. dollars having the
Index Maturity specified on the face hereof are offered to prime
banks in the London Interbank Market by four major banks selected
by the Calculation Agent commencing on the second London Market
Day immediately following such LIBOR Interest Determination Date,
and in a principal amount equal to an amount of not less than
U.S.$1,000,000 that in the Calculation Agent's judgment is
representative for a single transaction in such market at such
time. The Calculation Agent will request the principal London
office of each such bank to provide a quotation of its rate. If
at least two such quotations are provided, LIBOR for such LIBOR
Interest Determination Date will be the arithmetic mean, as
calculated by the Calculation Agent, of such quotations, adjusted
by the addition or subtraction of the Spread, if any, specified
on the face hereof, or by multiplication by the Spread
Multiplier, if any, specified on the face hereof. If fewer than
two quotations are provided, LIBOR for such LIBOR Interest
Determination Date will be the arithmetic mean, as calculated by
the Calculation Agent, of the rates quoted at approximately 11:00
a.m., New York City time, on such LIBOR Interest Determination
Date by three major banks in The City of New York, selected by
the Calculation Agent, for loans in U.S. dollars to leading
European banks, having the Index Maturity specified on the face
hereof, commencing on the second London Market Day immediately
following such LIBOR Interest Determination Date, and in a
principal amount equal to an amount of not less than
U.S.$1,000,000 that in the Calculation Agent's judgment is
representative for a single transaction in such market at such
time, adjusted by the addition or subtraction of the Spread, if
any, specified on the face hereof, or by multiplication by the
Spread Multiplier, if any, specified on the face hereof;
provided, however, that if the banks selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence,
LIBOR will be the LIBOR in effect on such LIBOR Interest
Determination Date.
"London Market Day" means any day on which deposits in U.S. dollars are
transacted in the London interbank market.
Determination of Treasury Rate. If the Interest Rate Basis specified on
the face hereof is the Treasury Rate, the interest rate with respect to this
Security for any Interest Reset Date shall equal (a) the rate for the most
recent auction of direct obligations of the United States ("Treasury bills")
having the Index Maturity specified on the face hereof as published in
H.15(519) under the heading "U.S.
-11-
<PAGE> 12
Government Securities - auction average (investment)" on the Treasury Interest
Determination Date (as defined below) or (b) if such rate is not so published
by 3:00 p.m., New York City time, on the Calculation Date pertaining to such
Treasury Interest Determination Date, the auction average rate (expressed as
bond equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) for such auction as otherwise announced by the United
States Department of the Treasury or (c) in the event that the results of the
auction of Treasury bills having the Index Maturity specified on the face
hereof are not published or reported as provided in (a) or (b) above by 3:00
p.m., New York City time, on such Calculation Date or if no such auction is
held in a particular week, the yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean, as calculated by the
Calculation Agent on such Calculation Date, of the secondary market bid rates
as of approximately 3:30 p.m., New York City time, on such Treasury Interest
Determination Date, of three leading primary United States government
securities dealers selected by the Calculation Agent for the issue of Treasury
bills with a remaining maturity closest to the Index Maturity specified on the
face hereof, in each of the above cases adjusted by the addition or subtraction
of the Spread, if any, specified on the face hereof, or by multiplication by
the Spread Multiplier, if any, specified on the face hereof; provided, however,
that if such dealers selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, the Treasury Rate shall be the Treasury
Rate on such Treasury Interest Determination Date.
The "Treasury Interest Determination Date" pertaining to an Interest
Reset Date will be the day on which Treasury bills are auctioned for the week
in which such Interest Reset Date falls, or if no auction is held for such
week, the Monday of such week (or if Monday is a legal holiday, the next
succeeding Market Day) and the Interest Reset Date will be the Market Day
immediately following such Treasury Interest Determination Date. Treasury
bills are usually sold at auction on Monday of each week, unless that day is a
legal holiday, in which case the auction is usually held on the following
Tuesday, except that such auction may be held on the preceding Friday. If an
auction is held for such week on Monday or the preceding Friday, such Monday or
preceding Friday shall be the Treasury Interest Determination Date for such
week, and the Interest Reset Date for such week shall be the Tuesday of such
week (or, if such Tuesday is not a Market Day, the next succeeding Market Day).
If the auction for such week is held on any day of such week other than Monday,
then such date shall be the Treasury Interest Determination Date and the
Interest Reset Date for such week shall be the next succeeding Market Day.
(INSERT OTHER INTEREST RATE BASIS PROVISIONS, IF APPLICABLE)
Unless otherwise specified on the face hereof, the Calculation Date
pertaining (i) to any Commercial Paper Rate Interest Determination Date, CD
Rate Interest Determination Date, Treasury Interest Determination Date or
Federal Funds Effective Rate Interest Determination Date, as the case may be,
shall be the tenth day after such interest determination date or, if any such
day is not a Market Day with respect to this Security, the next succeeding
Market Day and (ii) to any Prime Rate Interest Determination Date or LIBOR
Interest Determination Date shall be such LIBOR Interest Determination Date.
The Calculation Agent shall calculate the interest rate hereon in accordance
with the foregoing on or before each Calculation Date. At the request of the
Holder hereof, the Calculation Agent will provide to the Holder hereof the
interest rate hereon then in effect and, if determined, the interest rate which
will become effective as of the next Interest Reset Date. Unless otherwise
specified on the face hereof, the Calculation Agent shall be the Paying Agent.
If this Security is designated on the face hereof as an Original Issue
Discount Security, then, notwithstanding anything to the contrary contained in
this Security, upon the redemption or acceleration of Maturity of this Security
there shall be payable, in lieu of the principal amount due at the Stated
Maturity hereof, as specified on the face hereof, an amount equal to the
Amortized Face
-12-
<PAGE> 13
Amount of this Security. The "Amortized Face Amount" shall be the amount equal
to (a) the issue price of this Security (as defined below), plus (b) that
portion of the difference between the issue price and the principal amount of
this Security that has been amortized at the Stated Yield (as defined below) of
this Security (computed in accordance with generally accepted United States
bond yield computation principles) at the date as of which the Amortized Face
Amount is calculated, but in no event shall the Amortized Face Amount exceed
the principal amount of this Security due at the Stated Maturity hereof. As
used in the previous sentence "issue price" means the principal amount due at
the Stated Maturity hereof less the Total Amount of OID specified on the face
hereof and the "Stated Yield" means the Yield to Maturity specified on the face
hereof (or if not so specified, the yield to maturity compounded semi-annually
and computed in accordance with generally accepted United States bond yield
computation principles) for the period from the Issue Date to the Stated
Maturity on the basis of the issue price and such principal amount.
If this Security is denominated in a Specified Currency, unless the
Holder hereof is entitled to make, and has made, a Specified Currency Payment
Election with respect to such payments as provided on the face hereof, the
Holder of this Security shall receive payments of principal (and premium, if
any) and interest in U.S. dollars at an exchange rate based on the highest bid
quotation in The City of New York received by the Exchange Rate Agent (who,
unless otherwise specified on the face hereof, shall be the Paying Agent) at
approximately 11:00 a.m., New York City time, on the second Market Day with
respect to this Security preceding the applicable payment date from three
recognized foreign exchange dealers (one of which may be the Exchange Rate
Agent) selected by the Exchange Rate Agent and approved by the Company for the
purchase by the quoting dealer of the Specified Currency for U.S. dollars for
settlement on such payment date in the aggregate amount of such Specified
Currency payable to all Holders of Securities of this series denominated in
such Specified Currency and scheduled to receive U.S. dollar payment on such
payment date and at which the applicable dealer commits to execute a contract.
All currency exchange costs incurred by the Company in converting a Specified
Currency into U.S. dollars in order to make payments hereon will be borne by
the Holder of this Security by deductions from such payments. If such bid
quotations are not available, or if a Specified Currency Payment Election has
been made with respect to such payments, payments will be made in the Specified
Currency (or, if such Specified Currency is not at the time of such payment
legal tender for the payment of public and private debts, such other coin or
currency of the country which issued such Specified Currency as at the time of
such payment is legal tender for the payment of such debts); provided, however,
that if such Specified Currency (or, if applicable, such other coin or
currency) is unavailable due to the imposition of exchange controls or other
circumstances beyond the Company's control, the Company will be entitled to
make payments in U.S. dollars on the basis of the Market Exchange Rate for such
specified currency (or, if applicable, such other coin or currency) on the
second Market Day prior to such payment or, if such Market Exchange Rate is not
then available, on the basis of the most recently available Market Exchange
Rate or as otherwise indicated hereon.
(INSERT SINKING FUND PROVISIONS, IF APPLICABLE)
If one or more Redemption Dates (or ranges of Redemption Dates) is
specified on the face hereof, this Security is subject to redemption upon not
less than 30 days' notice by mail, on any such date (or during any such range),
as a whole or from time to time in part, at the election of the Company, at a
Redemption Price determined as provided in the next succeeding sentence,
together with accrued interest to the Redemption Date, but interest instalments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holder hereof (or one or more Predecessor Securities) of record at the
close of business on the Regular Record Dates referred to on the face hereof,
all as provided in the Indenture. If applicable, the "Redemption Price" for
any such redemption shall be the amount determined by multiplying the
Redemption Percentage specified on the face hereof with respect to the relevant
Redemption Date (or range of such dates) by the portion of the
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<PAGE> 14
principal amount hereof (or, if this Security is an Original Issue Discount
Security, the portion of the Amortized Face Amount hereof) to be redeemed;
provided, however, that in no event shall the Redemption Price be less than
100% of the portion of the principal amount hereof (or, if this Security is an
Original Issue Discount Security, the portion of the Amortized Face Amount
hereof) to be redeemed.
Notice of redemption having been given as aforesaid, this Security (or
the portion of the principal amount hereof so to be redeemed) shall, on the
Redemption Date, become due and payable at the Redemption Price herein
specified, and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) shall cease to bear
interest. In the case of any partial redemption at the election of the Company
of Securities of this series, the Securities of a particular tenor to be
redeemed shall be selected by the Paying Agent not more than 60 days prior to
the Redemption Date by such method as the Paying Agent shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal amount of Securities. In the event of any redemption of this
Security in part only, a new Security or Securities of this series of like
tenor for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof, provided that such unredeemed
portion shall not be less than the minimum denomination of this Security.
If one or more Redemption Dates (Option of Holder) (or ranges of such
dates) is specified on the face hereof, this Security is subject to redemption
on any such date (or during any such range) or, if such date is not a Market
Day, on the first Market Day following such date, as a whole or from time to
time in part, at the election of the Holder hereof at a Redemption Price
determined as provided in the fifth succeeding sentence together with accrued
interest thereon to the Redemption Date, but interest instalments whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holder
hereof of record at the close of business on the Regular Record Date referred
to on the face hereof, all as provided in the Indenture. Such election shall
be effected by the Holder hereof delivering to the Company at the principal
office of the Paying Agent at ___________________ not less than 30 nor more
than 60 days prior to the date on which this Security is to be redeemed, or
during such other Notice Period specified on the face hereof, a notice
requesting such redemption in the form described below and specifying the date
upon which this Security is to be redeemed. Any notice given by a Holder
pursuant to this paragraph shall consist of either (i) this Security with the
form entitled "Option to Elect Redemption" set forth of the end of this
Security duly completed or (ii) a telegram, facsimile transmission or a letter
from a member of a national securities exchange, or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States setting forth the name of the Holder hereof, the principal amount of
this Security, the principal amount of this Security to be redeemed, the
certificate number or a description of the terms of this Security, a statement
that the option to elect redemption is being exercised thereby and a guarantee
that this Security, together with the duly completed form entitled "Option to
Elect Redemption" below, will be received by the Paying Agent not later than
the fifth Business Day after the date of such telegram, facsimile transmission
or letter; provided, however, that, unless otherwise agreed, such telegram,
facsimile transmission or letter shall only be effective if this Security and
form duly completed are received by the Paying Agent by such fifth Business
Day. Exercise of the redemption option by the Holder hereof will be
irrevocable. If applicable, the "Redemption Price" for any such redemption
shall be the amount determined by multiplying the Redemption Percentage (Option
of Holder), specified on the face hereof with respect to the relevant
Redemption Date (Option of Holder) (or range of such dates) by the portion of
the principal amount hereof (or, if this Security is an Original Issue Discount
Security, the portion of the Amortized Face Amount hereof) to be redeemed,
together with the interest accrued thereon to the Redemption Date; provided,
however, that in no event shall the Redemption Price be less than 100% of the
portion of the principal amount hereof (or, if this Security is an Original
Issue Discount Security, the portion of the Amortized Face Amount hereof) to be
redeemed.
-14-
<PAGE> 15
The Indenture contains provisions for defeasance and covenant defeasance
at any time of the entire indebtedness on this Security upon compliance by the
Company with certain conditions set forth therein.
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the Securities of this series
(or, in the case of Original Issue Discount Securities, the Amortized Face
Amount thereof) may be declared due and payable in the manner and with the
effect provided in the Indenture. Upon payment (i) of the amount of principal
so declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of the interest, if any, on the Securities of this
series shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of 66 2/3% in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any)
and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
or her attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
set forth, the Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same. In
the event of any redemption at the election of the Company, neither the Trustee
nor the Paying Agent shall be required to (i) issue, register the transfer of
or exchange Securities of this series during a period beginning at the opening
of business 15 days before any selection of Securities of this series to be
redeemed and ending at the close of business on the day of mailing of the
relevant notice of redemption, nor (ii) register the transfer of or exchange
any Security, or portion thereof, called for redemption, except the unredeemed
portion of any Security being redeemed in part. Following the exercise of any
redemption option by the Holder hereof, neither the Trustee nor the Paying
Agent shall be required to issue, register the transfer of or exchange that
portion of this Security with respect to which such option has been exercised.
-15-
<PAGE> 16
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Notes of this series may be issued in the form of one or more Global
Securities to The Depository Trust Company as depository for the Global
Securities of this series (the "Depository") or its nominee and registered in
the name of the Depository or such nominee. If the face of this Security
contains a legend indicating that this Security is a Global Security so
registered, the transfer and exchange hereof is subject to the additional
limitations set forth in such legend.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee, the Paying Agent and any agent of the Company, the
Trustee or the Paying Agent may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security
is overdue, and neither the Company, the Trustee, the Paying Agent nor any such
agent shall be affected by notice to the contrary.
Any funds deposited with the Paying Agent and remaining unclaimed for
two years after the date upon which the last payment of principal or interest
on any Note to which such deposit relates shall have become due and payable,
shall be repaid to the Company by the Paying Agent on demand, and the holder of
any Note to which such deposit related entitled to receive payment shall
thereafter look only to the Company for the payment thereof and all liability
of the Paying Agent with respect to such money shall thereupon cease.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
__________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - ______________ Custodian ________________
(Custodian) (Minor)
Under Uniform Gifts to Minors Act (___________)
(State)
Additional abbreviations may also be used though not in the above list.
__________________
-16-
<PAGE> 17
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE
OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing _________________________________________________________________
attorney to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:__________________________ X________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument
in every particular, without alteration
or enlargement or any change whatever.
-17-
<PAGE> 18
OPTION TO ELECT REDEMPTION
The undersigned hereby irrevocably requests and instructs J. C.
Penney Company, Inc. to redeem the within Security (or portion thereof
specified below) pursuant to its terms at the Redemption Price, to the
undersigned at
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
THE UNDERSIGNED)
________________________________________________________________________________
________________________________________________________________________________
If less than the entire principal amount of the within Security
is to be redeemed, specify the portion thereof which the Holder elects to have
redeemed:
__________________________________________________________________________; and
specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Securities to be issued to the Holder
for the portion of the within Security not being redeemed (in the absence of
any such specification, one such Security will be issued for the portion not
being redeemed):
_______________________________________________________________________________.
Dated:___________________ _____________________________________________
NOTICE: This signature on this Option to
Elect Redemption must correspond with the
name as written upon the face of the within
instrument in every particular without
alteration or enlargement.
-18-
<PAGE> 1
EXHIBIT 4(c)
================================================================================
J. C. PENNEY COMPANY, INC.
AND
AS WARRANT AGENT
----------------
WARRANT AGREEMENT
Dated as of .....................
----------------
================================================================================
<PAGE> 2
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Execution and Delivery of Warrant Certificates . . . . . . . . . . . . . 1
SECTION 1.03. Issuance of Warrant Certificates . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.02. Duration of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.03. Exercise of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Debt Securityholders Conferred by Warrants or
Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 3.02. Lost, Stolen, Destroyed or Mutilated Warrant Certificates . . . . . . . . 4
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights . . . . . . . . . . . . 4
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates . . . . . . . . . . . . . . 4
SECTION 4.02. Treatment of Holders of Warrant Certificates . . . . . . . . . . . . . . 5
SECTION 4.03. Cancelation of Warrant Certificates . . . . . . . . . . . . . . . . . . . 5
ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 5.02. Conditions of Warrant Agent's Obligations . . . . . . . . . . . . . . . . 6
SECTION 5.03. Resignation and Appointment of Successor . . . . . . . . . . . . . . . . 7
SECTION 5.04. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
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* The Table of Contents is not a part of the Warrant Agreement.
<PAGE> 3
ARTICLE VI.
MISCELLANEOUS
<TABLE>
<S> <C>
SECTION 6.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 6.02. Notices and Demands to the Company and Warrant
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 6.03. Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 6.04. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 6.05. Delivery of Prospectus . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 6.06. Obtaining of Governmental Approvals . . . . . . . . . . . . . . . . . . . 8
SECTION 6.07. Persons Having Rights under Warrant Agreement . . . . . . . . . . . . . . 9
SECTION 6.08. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 6.09. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 6.10. Inspection of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 9
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
EXHIBIT A--Form of Warrant Certificate
</TABLE>
<PAGE> 4
THIS WARRANT AGREEMENT dated as of ...................................,
between J. C. Penney Company, Inc., a corporation duly organized and existing
under the laws of the State of Delaware ("Company") and ........................
......, .........., as Warrant Agent ("Warrant Agent").
WHEREAS, the Company has entered into an Indenture dated as of April
1, 1994 ("Indenture"), with Bank of America National Trust and Savings
Association, as Trustee ("Trustee"), providing for the issuance from time to
time of its unsecured debentures, notes or other evidences of indebtedness
("Debt Securities"), to be issued in one or more series as provided in the
Indenture; and
WHEREAS, the Company proposes to sell (title of Debt Securities being
offered) ("Offered Debt Securities") with warrant certificates evidencing one
or more warrants ("Warrants" or, individually a "Warrant") representing the
right to purchase (title of Debt Securities purchasable through exercise of
Warrants) (the "Warrant Debt Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among
other things, the form and provisions of the Warrant Certificates and the terms
and conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF
WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. Warrants shall be (initially)
issued in connection with the issuance of the Offered Debt Securities (but
shall be separately transferable) on and after ............., 19....
("Detachable Date") (and shall not be separately transferable). Warrant
Certificates shall be--initially-issued in units with the Offered Debt
Securities and each Warrant Certificate included in such a unit shall evidence
.... Warrants for each $............. principal amount of Offered Debt
Securities included in such unit.
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in (bearer) (registered) form
substantially in the form set forth in Exhibit A hereto, shall be dated
............. and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Warrant Certificates may be listed, or to conform to usage. The Warrant
Certificates shall be signed on behalf of the Company by its Chairman of the
Board, a Vice Chairman of the Board, President or any Vice President and its
Secretary or any of its Assistant Secretaries. Such signatures may be manual or
facsimile signatures of the present or any future such authorized officers and
may be imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of an authorized representative of the
Warrant Agent. Such signature upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
1
<PAGE> 5
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to
be such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates,
nevertheless, may be countersigned and delivered as though the person who
signed such Warrant Certificates has not ceased to be such officer of the
Company; and any Warrant Certificate may be signed on behalf of the Company by
such persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although at the date
of the execution of this Agreement any such person was not such officer.
(If bearer Warrants--The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean (If Debt Securities with Warrants which
are not immediately detachable--prior to the Detachable Date, the registered
owner of the Offered Debt Security to which such Warrant Certificate was
initially attached, and after such Detachable Date) the bearer of such Warrant
Certificate.)
(If registered Warrants--The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by or
on behalf of the Warrant Agent for that purpose (If Debt Securities with
Warrants which are not immediately detachable--or upon the register of the
Offered Debt Securities prior to the Detachable Date. The Company will, or will
cause the registrar of the Offered Debt Securities to, make available at all
times to the Warrant Agent such information as to holders of the Offered Debt
Securities with Warrants as may be necessary to keep the records maintained by
or on behalf of the Warrant Agent up to date.))
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate principal amount not exceeding
$............. aggregate principal amount of Warrant Debt Securities (except as
provided in Sections 2.03(c), 3.02 and 4.01) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant Agreement or
from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
$............. aggregate principal amount of Warrant Debt Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for one or more previously countersigned
Warrant Certificates (If registered Warrants--or in connection with their
transfer), as hereinafter provided.
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price*. (On .............., 19...., the exercise
price of each Warrant is $.............. During the period from ..............,
19...., through and including ............., 19...., the exercise price of each
Warrant will be $............. plus (accrued amortization of the original issue
discount) (accrued interest) from ............., 19..... On .............,
19...., the exercise price of each Warrant will be $.............. During the
period from ............., 19.... through and including .............., 19....,
the exercise price of each Warrant will be $............. plus (accrued
amortization of the original issue discount) (accrued interest) from
.............., 19.... (In each case, the original issue discount will be
amortized at a ....% annual rate, computed on a (semiannual) (annual) basis
using a 360-day year consisting of twelve 30-day months). Such purchase price
of Warrant Debt Securities is referred to in this Agreement as "the Warrant
Price." (The original issue discount for $1,000 principal amount of Warrant
Debt Securities is $..............)
- ------------------
* Complete and modify the provisions of this Section as appropriate to
reflect the exact terms of the Offered Warrants and the Warrant Debt
Securities.
2
<PAGE> 6
SECTION 2.02. Duration of Warrants. Each Warrant evidenced by a
Warrant Certificate may be exercised in whole at any time, as specified herein,
on or after (the date thereof) (............., 19....) and at or before the
close of business on .............., 19.... ("Expiration Date"). Each Warrant
not exercised at or before the close of business on the Expiration Date shall
become void, and all rights of the holder of the Warrant Certificate evidencing
such Warrant and under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. (a) During the period specified in
Section 2.02, any whole number of Warrants, if the Warrant Certificate
evidencing the same shall have been countersigned by the Warrant Agent, may be
exercised by providing certain information set forth on the reverse side of the
Warrant Certificate and by paying in full, in lawful money of the United States
of America, (in cash or by certified check or official bank check or by bank
wire transfer) (by bank wire transfer), in each case in (immediately available)
funds, the Warrant Price for each Warrant exercised, to (......................
................................ ) at (......................................)
(or ..................................), provided that such exercise is subject
to receipt within five business days of such (payment) (wire transfer) by
...................... of the Warrant Certificate with the form of election to
purchase Warrant Debt Securities set forth on the reverse side of the Warrant
Certificate properly completed and duly executed. The date on which payment in
full of the Warrant Price is received by ...................... shall, subject
to receipt of the Warrant Certificate as aforesaid, be deemed to be the date on
which the Warrant is exercised.
(b) ...................... shall, from time to time, as promptly as
practicable, advise the Trustee or any Authenticating Agent under the Indenture
of (i) the number of Warrants exercised in accordance with the terms and
conditions of this Agreement and the Warrant Certificates, (ii) the
instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Debt Securities to which such
holder is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Trustee or any Authenticating Agent
shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant or
Warrants, the Company shall issue, pursuant to the Indenture, in authorized
denominations to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant or Warrants, the Warrant Debt Security or Warrant Debt
Securities to which such holder is entitled, in fully registered form,
registered in such name or names as may be directed by such holder; and if
fewer than all of the Warrants evidenced by such Warrant Certificate were
exercised, the Company shall execute, and the Warrant Agent shall countersign
and deliver, a new Warrant Certificate evidencing the number of Warrants
remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any
transfer involved in the issue of the Warrant Debt Securities; and in the event
that any such transfer is involved, the Company shall not be required to issue
or deliver any Warrant Debt Securities until such tax or other charge shall
have been paid or it has been established to the Company's satisfaction that no
such tax or other charge is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Debt Securityholders Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
the Warrant Debt Securities, including, without limitation, the right to
receive payment of the principal of (and premium, if any) or interest, if any,
on the Warrant Debt Securities or to enforce any of the covenants in the
Indenture.
3
<PAGE> 7
SECTION 3.02. Lost, Stolen, Destroyed or Mutilated Warrant
Certificates. Upon receipt by the Company and the Warrant Agent of evidence
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of such security or indemnity as may
be required by them to save each of them harmless and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancelation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and upon its request the Warrant Agent shall countersign and deliver,
in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant
Certificate, a new Warrant Certificate of the same tenor and evidencing a like
number of Warrants. Upon the issuance of any new Warrant Certificate 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 Warrant Agent) in
connection therewith. Every substitute Warrant Certificate executed and
delivered pursuant to this Section in lieu of any lost, stolen or destroyed
Warrant Certificate shall represent an additional contractual obligation of the
Company, whether or not the lost, stolen or destroyed Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to the benefits of
this Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered 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 of lost, stolen, destroyed
or mutilated Warrant Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, the Trustee, any
Authenticating Agent, the holder of any Warrant Debt Securities or the holder
of any other Warrant Certificate, may, on his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company suitable to enforce, his right to exercise the Warrant or
Warrants evidenced by his Warrant Certificate in the manner provided in his
Warrant Certificate and in this Agreement.
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates. (If
Offered Debt Securities with Warrants which are immediately detachable--Upon)
(If Offered Debt Securities with Warrants which are not immediately detachable--
Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Debt Security to which the Warrant
Certificate was initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Debt Security. On or
prior to the Detachable Date, each transfer of the Offered Debt Security shall
operate also to transfer the related Warrant Certificates. After the Detachable
Date upon) surrender at ...................... (or .....................),
Warrant Certificates may be exchanged for other Warrant Certificates in
denominations evidencing Warrants, each Warrant entitling the holder thereof to
purchase $............. principal amount of Warrant Debt Securities at the
Warrant Price (If registered Warrants--or may be transferred in whole or in
part) (If bearer or registered Warrants--; provided that such other Warrant
Certificates evidence the same aggregate number of Warrants as the Warrant
Certificates so surrendered.) (If registered Warrants--The Warrant Agent shall
keep or cause to be kept books in which, subject to such reasonable regulations
as it may prescribe, there shall be registered Warrant Certificates in
accordance with Section 1.02 and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent or ............
........... for transfer, properly endorsed or accompanied by appropriate
instruments of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent or .......................,
as the case may be.) No service charge shall be made for any exchange (or
transfer) of Warrant Certificates,
4
<PAGE> 8
but the Company may require payment of a sum sufficient to cover any stamp or
other tax or governmental charge that may be imposed in connection with any
such exchange (or transfer). Whenever any Warrant Certificates are so
surrendered for exchange (or transfer) the Warrant Agent shall countersign and
deliver or cause to be delivered to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company. No exchange (or transfer) shall be effected which will result in the
issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange (or transfer) of Warrant Certificates shall be the
valid obligations of the Company, evidencing the same obligations, and entitled
to the same benefits under this Agreement, as the Warrant Certificates
surrendered for such exchange--or transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. ((If
Offered Debt Securities with bearer Warrants which are not immediately
detachable--Subject to Section 4.01, each) (If Offered Debt Securities with
bearer Warrants which are immediately detachable--Each) Warrant Certificate
shall be transferable by delivery and shall be deemed negotiable and the bearer
of each Warrant Certificate may be treated by the Company, the Warrant Agent,
any agent of the Warrant Agent and all other persons dealing with such bearer
as the absolute owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice
to the contrary notwithstanding.) (If registered Warrants--Every holder of a
Warrant Certificate, by accepting the same, consents and agrees with the
Company, the Warrant Agent and any agent of the Warrant Agent that until the
Warrant Certificate is transferred on the books maintained for registration of
Warrants in accordance with Section 4.02 (or the register of the Offered Debt
Securities prior to the Detachable Date), the Company, the Warrant Agent and
any agent of the Warrant Agent may treat the registered holder as the absolute
owner thereof for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced thereby, any notice to the contrary
notwithstanding.)
SECTION 4.03. Cancelation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange (, transfer) or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company or any agent of the
Warrant Agent, be delivered to the Warrant Agent, and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly canceled by
the Warrant Agent and shall not be reissued and, except as expressly permitted
by this Agreement, no Warrant Certificate shall be issued hereunder in exchange
or in lieu thereof. The Warrant Agent shall deliver to the Company from time to
time or otherwise dispose of canceled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent. The Company hereby appoints .............
............................................ as Warrant Agent of the Company
in respect of the Warrants and the Warrant Certificates upon the terms and
subject to the conditions herein set forth; and ...............................
.................. hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further powers and authority to act on behalf
of the Company as the Company may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained in
the Warrant Certificates are subject to and governed by the terms and
provisions hereof.
The Warrant Agent, from time to time upon receipt of a request of the
Company, shall promptly appoint one or more agents with power to act on its
behalf and subject to its direction in the countersigning and delivery of
Warrant Certificates and in connection with registrations of transfers and
exchanges of Warrant Certificates as fully to all intents and purposes as
though each such agent had been expressly authorized to countersign and deliver
such Warrant Certificates, and in connection with
5
<PAGE> 9
the exercise of Warrants. For all purposes of this Agreement, the
countersignature and delivery of Warrant Certificates by any such agent
pursuant to this Section shall be deemed to be the countersignature and
delivery of such Warrant Certificates "by the Warrant Agent."
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following, to all of which the Company agrees and to all
of which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent (including any agent appointed
pursuant to Section 5.01) the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to
reimburse the Warrant Agent for reasonable out-of-pocket expenses
(including counsel fees) incurred by the Warrant Agent in connection
with the services rendered hereunder by the Warrant Agent. The Company
also agrees to indemnify the Warrant Agent for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out
of or in connection with its acting as Warrant Agent hereunder, as
well as the costs and expenses of defending against any claim of
liability in the premises.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant
Agent is acting solely as agent of the Company and does not assume any
obligation or relationship of agency or trust for or with any of the
owners or holders of the Warrant Certificates.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it, and the advice of such 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 accordance
with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any Warrant Certificates, notice,
direction, consent, certificate, affidavit, statement or other paper
or document reasonably believed by it to be genuine and to have been
presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its
officers, directors and employees, may become the owner of, or acquire
any interest in, any Warrant Certificates, with the same rights that
it or they would have if it were not the Warrant Agent hereunder, and,
to the extent permitted by applicable law, it or they may engage or be
interested in any financial or other transaction with the Company and
may act on, or as depositary, trustee or agent for, any committee or
body of holders of Warrant Debt Securities or other obligations of the
Company as freely as if it were not the Warrant Agent hereunder.
(f) No Liability for Interest. The Warrant Agent shall not
have any liability for interest on any monies at any time received by
it pursuant to any of the provisions of this Agreement or of the
Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall not
incur any liability with respect to the validity of this Agreement or
any of the Warrant Certificates.
(h) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations
herein or in the Warrant Certificates contained (except as to the
Warrant Agent's countersignature thereon), all of which are made
solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant
6
<PAGE> 10
Agent. The Warrant Agent shall not be under any obligation to take any
action hereunder which may tend to involve it in any expense or
liability, the payment of which within a reasonable time is not, in
its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the
Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this
Agreement or for the application by the Company of the proceeds of the
Warrant Certificates. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the
Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing,
any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section 6.02
hereof, to make any demand upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective; provided that
such date shall not be less than three months after the date on which such
notice is given unless the Company agrees to accept less notice. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the date when it shall become effective. Such resignation or
removal shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Warrant Agent (which shall be a corporation organized
and doing business under the laws of the United States of America or of any
State and authorized under such laws to act as warrant agent) and the
acceptance of such appointment by such successor Warrant Agent. The obligation
of the Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt
or insolvent, or shall file a petition seeking relief under Title 11 of the
United States Code, as now constituted or hereafter amended, or under any other
applicable Federal or State bankruptcy law or similar law or make an assignment
for the benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the provisions of Title 11 of the United States Code, as now constituted
or hereafter amended, or under any other applicable Federal or State bankruptcy
or similar law, or if any public officer shall have taken charge or control of
the Warrant Agent or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, a successor Warrant Agent,
qualified as aforesaid, shall be appointed by the Company by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment as
aforesaid of a successor Warrant Agent and acceptance by the successor Warrant
Agent of such appointment, the Warrant Agent so superseded shall cease to be
Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
7
<PAGE> 11
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
SECTION 5.04. Payment of Taxes. The Company will pay all stamp and
other duties, if any, to which, under the laws of the United States of America
or any State, this Agreement or the original issuance of the Warrant
Certificates may be subject.
ARTICLE VI.
MISCELLANEOUS
Section 6.01. Amendment. This Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company and
the Warrant Agent may deem necessary or desirable; provided that such action
shall not adversely affect the interests of the holders of the Warrant
Certificates.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent. If
the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
SECTION 6.03. Addresses. Any communications from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to ............
................................................................... and any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to J. C. Penney Company, Inc., 6501 Legacy Drive,
Plano, Texas 75024-3698, Attention: Treasurer (or such other address as shall
be specified in writing by the Warrant Agent or by the Company).
SECTION 6.04. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by the laws of
the State of New York.
SECTION 6.05. Delivery of Prospectus. The Company will furnish to the
Warrant Agent or any agent appointed by it in accordance with Section 5.01
sufficient copies of a prospectus and prospectus supplement, as the case may
be, relating to the Warrant Debt Securities deliverable upon exercise of
Warrants for delivery thereof to the holders of the Warrant Certificate
evidencing such Warrants, prior to or concurrently with the delivery of the
Warrant Debt Securities issued upon such exercise.
SECTION 6.06. Obtaining of Governmental Approvals. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation the maintenance of the effectiveness
of a registration statement in respect of the Warrants and Warrant Debt
Securities under the Securities Act of 1933), which may be or become requisite
in connection with the issuance, sale, transfer and delivery of the Warrant
Certificates, the exercise of the Warrants and the issuance, sale, transfer and
delivery of the Warrant Debt Securities issued upon exercise of the Warrants.
8
<PAGE> 12
SECTION 6.07. Persons Having Rights under Warrant Agreement. Nothing
in this Agreement expressed or implied and nothing that may be inferred from
any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the Warrant
Agent and its agents and the holders of the Warrant Certificates any right,
remedy or claim under or by reason of this Agreement or of any covenant,
condition, stipulation, promise or agreement hereof; and all covenants,
conditions, stipulations, promises and agreements in this Agreement contained
shall be for the sole and exclusive benefit of the Company and the Warrant
Agent and its agents and their successors and of the holders of the Warrant
Certificates.
SECTION 6.08. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times at the principal office of the Warrant
Agent at ....................... and at the main office of the Company, 6501
Legacy Drive, Plano, Texas 75024-3698, for inspection by the holder of any
Warrant Certificate. The Warrant Agent or the Company may require such holder
to submit his Warrant Certificate for inspection by it.
IN WITNESS WHEREOF, J. C. Penney Company, Inc. has caused this
Agreement to be signed by one of its duly authorized officers, and its
corporate seal to be affixed hereunto, and the same to be attested by its
Secretary or one of its Assistant Secretaries; and .............................
.................. has caused this Agreement to be signed by one of its duly
authorized officers, and its corporate seal to be affixed hereunto, and the same
to be attested by ......................., all as of the day and year first
above written.
J. C. PENNEY COMPANY, INC.
BY .....................................
Attest:
.................................
.....................................
By .....................................
Attest:
.................................
9
<PAGE> 13
EXHIBIT A
(FORM OF WARRANT CERTIFICATE)
(FRONT FACE OF WARRANT CERTIFICATE)
<TABLE>
<S> <C>
(Form of Legend if Debt Securities with Warrants Prior to ............ this Warrant cannot be
which are not immediately detachable: transferred or exchanged unless attached to a
(Title of Debt Securities).)
(Form of Legend if Warrants are not immediately Prior to ............ this Warrant cannot be
exercisable: exercised in whole or in part.)
</TABLE>
EXERCISABLE ONLY IF COUNTERSIGNED BY
OR ON BEHALF OF THE WARRANT AGENT
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
(Title of Warrant Debt Securities)
as described herein.
J. C. PENNEY COMPANY, INC.
PURCHASE WARRANT
FOR (TITLE OF WARRANT DEBT SECURITIES)
VOID AFTER THE CLOSE OF BUSINESS ON .............., 19....
(No.) ............. Warrants
This certifies that (the bearer is the) (............. or registered
assigns is the registered) owner of the above indicated number of Warrants, each
Warrant entitling such-bearer-owner-to purchase, at any time (after the close of
business on ............., 19.... and) on or before the close of business on
.............., 19...., $............. principal amount of (title of Warrant
Debt Securities) ("Warrant Debt Securities"), of J. C. Penney Company, Inc.
("Company"), issued and to be issued under the Indenture (as hereinafter
defined), on the following basis:* (On .............., 19...., the exercise
price of each Warrant is $.............; during the period from ..............,
19...., through and including .............., 19...., the exercise price of each
Warrant will be $............. plus-accrued amortization of the original issue
discount-accrued interest-from .............., 19....; on .............., 19....
the exercise price of each Warrant will be $.............; during the period
from .............., 19...., through and including .............., 19...., the
exercise price of each Warrant will be $............. plus-accrued amortization
of the original issue discount-accrued interest-from .............., 19....; (in
each case, the original issue discount will be amortized at a ....% annual rate
computed on a-semiannual-annual-basis, using a 360-day year consisting of twelve
30-day months) ("Warrant Price"). (The original issue discount for each
$............. principal amount of Warrant Debt Securities is $..............)
The (bearer) (registered owner) may exercise the Warrants evidenced hereby by
paying in full, in lawful money of the United States of America, (in cash or by
certified check or official bank check or by bank wire transfer) (by bank wire
transfer), in each case in (immediately available) funds, the Warrant Price for
each Warrant exercised to .................. (or .............) and by
surrendering this Warrant Certificate within five business days of such payment,
with the purchase form on the back hereof properly completed and duly executed,
at the office of ............. (or ................................,) currently
at the address specified on the reverse hereof and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement (as
hereinafter defined).
- ------------------
* Complete and modify the following provisions as appropriate to
reflect the exact terms of the Offered Warrants and the Warrant Debt
Securities.
A-1
<PAGE> 14
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Debt Securities in registered form in
denominations of $............. and any integral multiples thereof. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the (bearer) (registered owner) hereof a
new Warrant Certificate evidencing the number of Warrants remaining
unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of .............., 19.... ("Warrant Agreement"),
between the Company and ............. ("Warrant Agent") and is subject to the
terms and provisions contained in the Warrant Agreement, to all of which terms
and provisions the (bearer) (registered owner) of this Warrant Certificate
consents by acceptance hereof. Copies of the Warrant Agreement are on file at
the principal office of the Warrant Agent at ............. and the main office
of the Company, 6501 Legacy Drive, Plano Texas 75024-3698.
The Warrant Debt Securities to be issued and delivered upon the
exercise of the Warrants evidenced by this Warrant Certificate will be issued
under and in accordance with an Indenture dated as of April 1, 1994
("Indenture"), between the Company and Bank of America National Trust and
Savings Association, as Trustee, and will be subject to the terms and
provisions contained in the Indenture. Copies of the Indenture, including the
form of the Warrant Debt Securities, are on file at the corporate trust office
of said Trustee at ...................... (and at ..................).
(If Offered Debt Securities with bearer Warrants which are not
immediately detachable--Prior to ..........., 19.... this Warrant Certificate
may be exchanged or transferred only together with the (title of Offered Debt
Securities) ("Offered Debt Securities") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction
with an exchange or transfer of such Offered Debt Security. After such date,
this (If Offered Debt Securities with bearer Warrants which are immediately
detachable--This) Warrant Certificate, and all rights hereunder may be
transferred by delivery and the Company and the Warrant Agent and its agents
may treat the bearer hereof as the owner for all purposes.)
(If Offered Debt Securities with registered Warrants which are not
immediately detachable--Prior to .............., 19.... this Warrant
Certificate may be exchanged or transferred only together with the (title of
Offered Debt Securities) ("Offered Debt Securities") to which this Warrant
Certificate was initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Debt Security. After
such date, this (If Offered Debt Securities with registered Warrants which are
immediately detachable--This) Warrant Certificate may be transferred when
surrendered at the office of ...................... (or ............. ) by the
registered owner or his assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in the Warrant
Agreement.)
(If Offered Debt Securities with Warrants which are not immediately
detachable--Except as provided in the immediately proceeding paragraph, after)
(If Offered Debt Securities with Warrants which are immediately detachable
After) countersignature by or on behalf of the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the office of .................... (or ....................) for
Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the (bearer) (registered
owner) hereof to any of the rights of a holder of the Warrant Debt Securities,
including, without limitation, the right to receive payment of the principal of
(and premium, if any) or interest, if any, on the Warrant Debt Securities or to
enforce any of the covenants of the Indenture.
A-2
<PAGE> 15
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by or behalf of the Warrant Agent.
Dated as of .............., 19....
J. C. PENNEY COMPANY, INC.
By .....................................
Attest:
By ...............................
Countersigned by or on behalf of:
........................................
As Warrant Agent
By .....................................
Authorized Signature
A-3
<PAGE> 16
(BACK FACE OF WARRANT CERTIFICATE)
(INSTRUCTIONS FOR EXERCISE OF WARRANT)
To exercise the Warrants represented hereby, the Warrantholder should
pay (in cash or by certified check or official bank check or by bank wire
transfer) (by bank wire transfer), in each case in (immediately available)
funds, the Warrant Price in full for Warrants exercised to (...................
.........) (or .............), which payment should specify the name of the
Warrantholder and the number of Warrants exercised by such Warrantholder. In
addition, the Warrantholder should complete the information required below and
present in person or mail by registered mail this Warrant Certificate to ......
.............. (or ............) at the address set forth below. This Warrant
Certificate, completed and duly executed, must be received by .................
........... (or .............) within five business days of the payment.
(FORM OF ELECTION TO PURCHASE)
(TO BE EXECUTED UPON EXERCISE OF WARRANT.)
The undersigned hereby irrevocably elects to exercise .... Warrants,
represented by this Warrant Certificate, to purchase $............. principal
amount of the (title of Warrant Debt Securities) ("Warrant Debt Securities") of
J. C. Penney Company, Inc. and represents that he has tendered payment for
such Warrant Debt Securities (in cash or by certified check or official bank
check or by bank wire transfer) (by bank wire transfer), in each case in
(immediately available) funds to the order of J. C. Penney Company, Inc., c/o
...................... (or .....................), in the amount of $.........
in accordance with the terms hereof. The undersigned requests that said
principal amount of Warrant Debt Securities be in fully registered form, in
such authorized denominations, registered in such names and delivered, all as
specified in accordance with the instructions set forth below.
If said principal amount of Warrant Debt Securities is less than all
of the Warrant Debt Securities purchasable hereunder, the undersigned requests
that a new Warrant Certificate representing the remaining balance of the
Warrants evidenced hereby be issued and delivered to the undersigned unless
otherwise specified in the instructions below.
Dated:
Name ...................................
(Please Print)
.....................................
(Insert Social Security or Other
Identifying Number of Holder)
Address ................................
................................
Signature ..............................
This Warrant may be exercised at the following addresses:
(Instructions as to form and delivery of Warrant Debt Securities
and/or Warrant Certificates)
A-4
<PAGE> 1
Exhibit 5
April 26, 1994
Board of Directors
J. C. Penney Company, Inc.
6501 Legacy Drive
Plano, Texas 75024-3698
Dear Sirs:
As General Counsel of J. C. Penney Company, Inc., a Delaware corporation
("Company"), I am familiar with the Restated Certificate of Incorporation of
the Company, as amended, and its By-laws, as amended.
I am also familiar with the corporate proceedings heretofore taken and the
additional proceedings proposed to be taken in connection with the issuance and
sale from time to time of up to $1,500,000,000 aggregate principal amount of
debt securities ("Debt Securities") issuable under an Indenture dated as of
April 1, 1994 ("Indenture") between the Company and Bank of America National
Trust and Savings Association, Trustee ("Trustee"), each series of which will
be offered on terms to be determined at the time of sale. The Debt Securities
may be offered with warrants ("Warrants") to purchase Debt Securities, any such
Warrants to be issued pursuant to a warrant agreement ("Warrant Agreement") to
be entered between the Company and a warrant agent ("Warrant Agent") (Debt
Securities and Warrants being collectively called "Securities"). I have
examined the Registration Statement on Form S-3 in the form being filed by the
Company with the Securities and Exchange Commission on this date, for the
registration under the Securities Act of 1933, as amended, of the Securities
for an offering to be made on a continuous or delayed basis pursuant to the
provisions of Rule 415. I have also examined such other documents and records
as I have deemed appropriate for the purpose of this opinion.
Based upon the foregoing, I am of the opinion as follows:
(i) The execution and delivery of the Indenture has been validly
authorized, and the Indenture constitutes a valid and binding obligation of the
Company in accordance with its terms except as the same may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of
<PAGE> 2
general applicability relating to or affecting creditors' rights and to general
equity principles.
(ii) Subject to the proposed additional proceedings being taken as
now contemplated by the Company prior to the issuance of the Debt Securities,
when the Debt Securities, including the Debt Securities issuable upon due
exercise of the Warrants in accordance with the terms of the Warrant Agreement,
have been duly executed on behalf of the Company, authenticated by or on behalf
of the Trustee, issued and sold as described in the Registration Statement,
including the Prospectus and Prospectus Supplement relating thereto, and
delivered by the Company in accordance with the Indenture, such Debt Securities
will constitute valid and binding obligations of the Company in accordance with
their respective terms and the terms of the Indenture except as limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(iii) Subject to the proposed additional proceedings being taken as
now contemplated by the Company prior to the issuance of the Warrants, and to
the due execution and delivery of the Warrant Agreement relating to the
Warrants to be issued, when the warrant certificates evidencing such Warrants
("Warrant Certificates") shall have been duly executed on behalf of the Company
and countersigned by the Warrant Agent, issued and sold as described in the
Registration Statement, including the Prospectus and Prospectus Supplement
relating thereto, and such Warrant Certificates shall have been delivered by
the Company in accordance with the Warrant Agreement, the Warrant Certificates
will constitute valid and binding obligations of the Company in accordance with
their respective terms and the terms of the Warrant Agreement except as limited
by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general equity principles.
I hereby consent to the reference to me under the heading "Validity of
Securities" in the Prospectus included in said Registration Statement and to
the filing of this opinion as an exhibit to said Registration Statement.
Very truly yours,
/s/ C. R. Lotter
- ------------------------
C. R. Lotter
General Counsel
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Stockholders and
Board of Directors
J. C. PENNEY COMPANY, INC.
We consent to the use of our reports incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus.
Our reports refer to the adoption of the Financial Accounting Standards Board's
Statement of Financial Accounting Standards No. 106, Employers' Accounting
---------------------
for Postretirement Benefits Other Than Pensions, in 1991, and to the adoption
- -----------------------------------------------
of the Financial Accounting Standards Board's Statement of Financial Accounting
Standards No. 109, Accounting for Income Taxes, in 1993.
---------------------------
/s/ KPMG PEAT MARWICK
-----------------------------
KPMG PEAT MARWICK
Dallas, Texas
April 25, 1994
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and officers of J. C. PENNEY COMPANY, INC., a Delaware corporation ("Company"),
which will file with the Securities and Exchange Commission, Washington, D.C.,
under the provisions of the Securities Act of 1933, a Registration Statement on
Form S-3 (or any appropriate form then in effect) for the registration of the
Company's debt securities (which may include debt securities, together with
warrants or other rights to purchase or otherwise acquire debt securities),
hereby constitutes and appoints C. R. Lotter, D. A. McKay, and R. E. Northam,
and each of them, his or her true and lawful attorneys-in-fact and agents, with
full power to each of them to act without the others, for him or her and in his
or her name, place, and stead, in any and all capacities, to sign said
Registration Statement and Prospectus and Prospectus Supplements, which are
about to be filed, and any and all subsequent amendments thereto (including,
without limitation, any post-effective amendments thereto ("Registration
Statement")) and to file said Registration Statement so signed, with all
exhibits thereto, and any and all documents in connection therewith, and to
appear before the Commission in connection with any matter relating to said
Registration Statement, hereby granting unto said attorneys-in-fact and agents,
and each of them, full power and authority to do and perform any and all acts
and things requisite and necessary to be done in and about the premises as
fully and to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have executed this Power of
Attorney as of the 9th day of March, 1994.
<TABLE>
<S> <C>
/s/ W. R. Howell /s/ R. E. Northam
- ------------------------------ --------------------------------
W. R. Howell R. E. Northam
Chairman of the Board Executive Vice President and
(principal executive officer); Chief Financial Officer
Director (principal financial officer)
/s/ L. A. Gispanski
--------------------------------
L. A. Gispanski
Vice President and Controller
(principal accounting officer)
</TABLE>
<PAGE> 2
<TABLE>
<S> <C>
/s/ M. A. Burns /s/ A. K. Pye
- ------------------------------ ---------------------------
M. A. Burns A. K. Pye
Director Director
/s/ C. H. Chandler /s/ C. S. Sanford, Jr.
- ------------------------------ ---------------------------
C. H. Chandler C. S. Sanford, Jr.
Director Director
/s/ V. E. Jordan, Jr. /s/ J. D. Williams
- ------------------------------ ---------------------------
V. E. Jordan, Jr. J. D. Williams
Director Director
/s/ George Nigh /s/ Boris Yavitz
- ------------------------------ ---------------------------
George Nigh Boris Yavitz
Director Director
/s/ J. C. Pfeiffer
- ------------------------------
J. C. Pfeiffer
Director
</TABLE>
<PAGE> 3
J. C. PENNEY COMPANY, INC.
CERTIFICATE OF ASSISTANT SECRETARY
I, T. M. Comerford, an Assistant Secretary of J. C. PENNEY COMPANY, INC., a
Delaware corporation ("Company"), DO HEREBY CERTIFY that attached hereto as
Exhibit A is a true and correct copy of a resolution duly adopted by the Board
of Directors of the Company at a meeting duly called and held on March 9, 1994,
at which a quorum was present and acting throughout, and said resolution
has not been modified or rescinded but remains in full force and effect on the
date hereof.
IN WITNESS WHEREOF, I have hereunto affixed my signature and the corporate
seal of the Company this 25th day of April, 1994.
/s/ T. M. COMERFORD
Assistant Secretary
[SEAL]
<PAGE> 4
EXHIBIT A
RESOLVED that in connection with the issuance and sale in the
international capital markets or in the United States, or in a combination of
both, of Securities registered with the Securities and Exchange Commission, L.
A. Gispanski, C. R. Lotter, D. A. McKay, and R. E. Northam be, and each of
them, with full power to act without the others, hereby is, appointed as the
attorney for the Company, with full power of substitution and resubstitution,
for and in the name, place, and stead of the Company, to sign and file a
Registration Statement on Form S-3 (or any appropriate form then in effect), as
approved by the Special Finance Comittee, for the registration under the 1933
Act of such Securities, and any and all subsequent amendments (including,
without limitation, any and all post-effective amendments) to said Registration
Statement, and any and all applications and other documents to be filed with
the Securities and Exchange Commission pertaining to such Securities, or said
Registration Statement, and with full power and authority to do and perform any
and all things whatsoever requisite and necessary to be done in the premises,
hereby ratifying and approving the acts of said attorney or any such
substitute; that C. R. Lotter be, and he hereby is, appointed agent for service
of process in connection with said Registration Statement and any amendments
thereto; and that the officers of the Company be, and each of them hereby is,
authorized in the name and on behalf of the Company, to execute a power of
attorney evidencing the foregoing appointment;
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER
THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
______________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
94-1687665
(STATE OF INCORPORATION (I.R.S. EMPLOYER
IF NOT A NATIONAL BANK) IDENTIFICATION NO.)
LOS ANGELES HEADQUARTERS:
333 SOUTH BEAUDRY AVENUE 90017
LOS ANGELES, CALIFORNIA (ZIP CODE)
HEAD OFFICE:
555 CALIFORNIA STREET 94120
SAN FRANCISCO, CALIFORNIA (ZIP CODE)
______________________
J.C. PENNEY COMPANY, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-5583779
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
6501 LEGACY DRIVE
PLANO, TEXAS 75024-3698
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
______________________
DEBT SECURITIES
(TITLE OF THE INDENTURE SECURITIES)
================================================================================
<PAGE> 2
FORM T-1
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 the Currency
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of San Francisco (Twelfth District)
San Francisco, California
Board of Governors of the Federal Reserve System
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS. If the obligor or any
underwriter for the obligor is an affiliate of the trustee, describe
each affiliation.
None.
In answering this item the trustee has relied in part on information
furnished by the obligor and the underwriters, and the trustee
disclaims responsibility for the accuracy or completeness of such
information. Trustee has also examined its own books and records for
the purpose of answering this item.
-2-
<PAGE> 3
16. LIST OF EXHIBITS
List below all exhibits filed as a part of this statement of
eligibility and qualification.
EXHIBIT A
Articles of Association of Bank of America National Trust and
Savings Association (formerly Bank of Italy). By-Laws of Bank
of America National Trust and Savings Association.
*EXHIBIT B
Copy of Charter under date of March 1, 1927 authorizing Bank
of Italy National Trust and Savings Association to commence
business of banking.
*EXHIBIT C
Copy of authorization of the Federal Reserve Board issued
under date of November 1, 1930, granting Bank of America
National Trust and Savings Association the right to act in a
fiduciary capacity.
*EXHIBIT D
Certificate issued by the Comptroller of the Currency under
date of November 1, 1930 evidencing consolidation of Bank of
Italy National Trust and Savings Association and Bank of
America of California under the corporate title of Bank of
America National Trust and Savings Association.
*EXHIBIT E
Copy of Charter under date of March 31, 1969, authorizing B.A.
National Bank to commence business of banking.
*EXHIBIT F
Copy of certificate issued by the Comptroller of the Currency
under date of April 1, 1969, evidencing the merger of Bank of
America National Trust and Savings Association into B.A.
National Bank under the title "Bank of America National Trust
and Savings Association".
-3-
<PAGE> 4
*EXHIBIT G
A copy of the approval for "Bank of America National Trust and
Savings Association" to operate the presently existing
branches of Bank of America National Trust and Savings
Association.
EXHIBIT H
Consent of Bank of America National Trust and Savings
Association required by Section 321 (b) of the Act.
EXHIBIT I
Copy of the latest Report of Condition at the close of
business on December 31, 1993 of the Trustee published
in response to call made by Comptroller of Currency.
EXHIBIT J
A copy of any order pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified
or to be qualified under the Act. (Not Applicable)
EXHIBIT K
Foreign trustees are required to furnish a consent to service
of process (see Rule 10a-4 under the Act). (Not Applicable)
*Exhibits prefaced by this designation are filed with Securities and Exchange
Commission as exhibits to Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939, as amended, in connection with the Registration
Statement of Borden Inc., File No. 2-50369, under the same exhibit number and
are incorporated herein by reference.
-4-
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the Trustee, Bank of America National Trust and Savings Association, a
corporation organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility and qualification to be
signed on its behalf by the undersigned, thereunto duly authorized, and its
seal to be hereunto affixed and attested, all in the City and County of Los
Angeles, State of California, on the 25th day of April, 1994 .
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:_________________________________
A. Soderholm
Vice President
(Name and Title)
Attest:____________________________
M. Lee
Assistant Secretary
<PAGE> 6
ARTICLES OF ASSOCIATION
AND
BYLAWS
______________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
ARTICLES: LAST AMENDED JUNE 23, 1992
BYLAWS: LAST AMENDED OCTOBER 4, 1993
<PAGE> 7
INDEX
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Articles of Association 1
- -----------------------
By-laws
- -------
Article I Offices 4
Article II Meetings of Shareholders 4
Article III Directors 6
Article IV Meetings of the Board of Directors 7
Article V Committees 9
Article VI Advisory Directors and 14
Advisory Boards
Article VII Officers 15
Article VIII Capital Stock--Certificates 17
of Stock
Article IX Indemnification 19
Article X Emergency 21
Article XI Miscellaneous 22
</TABLE>
-i-
<PAGE> 8
ARTICLES OF ASSOCIATION
OF
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION
FIRST. The title of the Association shall be "Bank of America
National Trust and Savings Association."
SECOND. The places where the banking houses and offices of the
Association shall be located and its operations of discount and deposit carried
on, and its general business conducted, shall be in the State of California,
its Head Office being in the City and County of San Francisco, State of
California, with such branches as may be authorized and established.
The Board of Directors shall have the power to move any of the
branches of the Association from one location to another as may be authorized
by law or regulation, or to discontinue the operations of any of such branches.
The Head Office of the Association and any of its branches may, pursuant to
appropriate action taken by the Directors, be moved from one location to
another, as may be authorized by law or regulation of the Comptroller of the
Currency, and without action by the shareholders.
THIRD. BOARD OF DIRECTORS. The Board of Directors shall consist of
such number of directors, not less than five nor more than twenty-five, as
shall be determined from time to time by resolution of the Board of Directors
or by the shareholders at any annual or special meeting.
A director of the Association shall not be personally liable to the
Association or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Association or its shareholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for willful or negligent violation of Sections
56 or 60 of Title 12 of the United States Code, or (iv) for any transaction
from which the director derives any improper personal benefit. Any repeal or
modification of the foregoing sentence shall not result in any liability for a
director with respect to any action or omission occurring prior to such repeal
or modification.
FOURTH. The regular annual meeting of the shareholders of the
Association shall be held in the city of its Head Office on such date as shall
be from time to time established by bylaws duly adopted by the Association. At
such meeting a Board of Directors shall be elected, but if no election shall be
held on that day, it may be held at any regular adjournment thereof or at a
subsequent special meeting called in accordance with the provisions of the laws
of the United States.
<PAGE> 9
FIFTH. The amount of authorized capital stock of the Association
shall be $700,000,000, divided into 35,000,000 shares of common stock at the
par value of twenty dollars ($20.00) each.
The said capital stock may be increased or decreased from time to
time in accordance with the provisions of the banking laws of the United
States. In the event of an increase in said capital stock by the sale of
additional shares thereof, except such sale as shall be made under the terms of
any Stock Options Plan for officers and employees which shall have been
approved by the shareholders, each shareholder shall be entitled to subscribe
for such additional shares in proportion to the number of shares of said
capital stock owned by him of record on such date before the stock is increased
as may be reasonably fixed by the Board of Directors or the shareholders.
SIXTH. (a) OFFICERS. -- The Board of Directors shall designate and
elect a Director to be Chairman of the Board, who shall perform such duties as
may be designated by the Board. The Board shall elect one of its members
President of the Association and may elect one or more of its members
Vice-Chairman or Vice-Chairmen of the Board. The Directors shall have power to
elect one or more Vice Presidents who shall be authorized, in the absence or
inability of the President from any cause, to perform all acts and duties
pertaining to the office of President except such as the President only is
authorized by law to perform; and to elect or appoint a Cashier, a Secretary,
and such other officers and clerks as may be required to transact the business
of the Association; and to fix the salaries to be paid to them and to continue
them in office or to dismiss them as in the opinion of a majority of the Board
the interests of the Association may demand.
(b) POWERS OF BOARD OF DIRECTORS. -- The Board of Directors shall
have the power to define the duties of the officers and clerks of the
Association, to require bonds from them and to fix the penalty thereof; to
regulate the manner in which election of Directors shall be held, and to
appoint judges of the elections; subject to the approval of the Comptroller of
the Currency and such other approvals as may be required by law, to issue
capital notes, capital debentures or similar instruments in such amounts and
under such terms and conditions as they may deem proper; to make all bylaws
that it may be proper for them to make, not inconsistent with law and these
Articles of Association, for the general regulation of the business of the
Association and the management of its affairs; and generally to do and perform
all acts that it may be legal for a Board of Directors to do and perform
according to law and within the limits of these Articles of Association.
SEVENTH. The corporate existence of the Association shall continue
until terminated in accordance with the laws of the United States.
<PAGE> 10
EIGHTH. AMENDMENTS TO ARTICLES OF ASSOCIATION AND SPECIAL MEETINGS
OF SHAREHOLDERS. Except as otherwise specifically provided by these Articles
of Association or by statute, these Articles of Association may be amended at
any regular or special meeting of shareholders by a majority of the votes to
which the holders of the shares of capital stock at the time outstanding are
entitled. Except as otherwise specifically provided by statute, special
meetings of the shareholders may be called for any purpose at any time by the
Board of Directors or by the holders of at least ten percent of the then
outstanding shares of any class. Every such special meeting shall be called by
mailing, not less than ten days before the time fixed for the meeting, to all
shareholders of record entitled to act and vote at such meeting at their
respective addresses as shown on the books of the Association, a notice stating
the purpose of the meeting. Such notice may be waived in writing.
<PAGE> 11
BYLAWS
OF
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION
ARTICLE I
OFFICES
Section 1. OFFICES. The Bank may have offices at such places where
the Bank is permitted by law to have offices as the Board of Directors may from
time to time determine or the business of the Bank may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. PLACE OF MEETING. The regular annual meeting of the
shareholders of the Bank shall be held in the City of San Francisco, State of
California at such place therein as shall be designated in the notice of
meeting or at such other place either within or without the State of California
as shall be designated in the notice of meeting. Special meetings of the
shareholders of the Bank shall be held at such place as may be fixed from time
to time by the Board of Directors and stated in the notice of the meeting.
Section 2. ANNUAL MEETINGS. The annual meeting of the shareholders
for the election of Directors and for the transaction of such other business as
may come before the meeting shall be held on the Thursday in May immediately
preceding the federal observance of the Memorial Day Holiday of each year at
such time as may be designated by the Board of Directors. If, for any reason,
an election of directors is not made on that day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. All elections
shall be held according to such regulations as may be prescribed by the Board
of Directors, not inconsistent with the provisions of the National Banking
Laws, the Articles of Association of the Bank, and these By-laws.
Section 3. NOTICE OF ANNUAL MEETING. Written notice of the annual
meeting stating the place, date and hour of the meeting shall be given to each
shareholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting.
<PAGE> 12
Section 4. NOMINATIONS. Nominations for election to the Board of
Directors may be made by the Board of Directors or by any shareholder entitled
to vote for the election of Directors. Nominations other than those made by or
on behalf of the existing management of the Bank, shall be made in writing and
shall include the following information to the extent known to the nominating
shareholder:
(1) Name and address of each proposed nominee;
(2) The principal occupation of each proposed nominee;
(3) The total number of shares that, to the knowledge of the
nominating shareholder, will be voted for each proposed
nominee;
(4) The name and residence address of the nominating
shareholder; and
(5) The number of shares owned by the nominating shareholder.
Such nominations shall be delivered or mailed to the President of
the Bank and to the Comptroller of the Currency, Washington, D.C., not less
than fourteen days nor more than fifty days prior to any meeting of
stockholders called for the election of Directors, provided however, that if
less than twenty-one days' notice of the meeting is given to shareholders, such
nomination shall be mailed or delivered to the President of the Bank and to the
Comptroller of the Currency not later than the close of business on the seventh
day following the day on which the notice of meeting was mailed. Nominations
not made in accordance herewith may, in his or her discretion, be disregarded
by the Chairman of the meeting, and upon his or her instructions, the vote
tellers may disregard all votes cast for each such nominee.
Section 5. SPECIAL MEETINGS. Special meetings of the shareholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
Articles of Association, may be called by the Chairman of the Board or the
President and shall be called by the Chairman of the Board or the President or
Secretary at the request in writing of a majority of the Board of Directors, or
at the request in writing of shareholders owning a majority in amount of the
entire capital stock of the Bank issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
Section 6. NOTICE OF SPECIAL MEETING. Written notice of a special
meeting stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given not less than ten nor
more than fifty days before the date of the meeting, to each shareholder
entitled to vote at such meeting.
Section 7. BUSINESS. Business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice of the
meeting or in a duly executed waiver of notice.
<PAGE> 13
Section 8. QUORUM AND ADJOURNMENT. The holders of a majority of
the stock issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum at all meetings of
the shareholders for the transaction of business except as otherwise provided
by statute or by the Articles of Association. If, however, such quorum shall
not be present or represented at any meeting of the shareholders, the
shareholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present
or represented any business may be transacted which might have been transacted
at the meeting as originally notified. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting.
Section 9. ORGANIZATION. At every meeting of the shareholders, the
Chairman of the Board shall preside. In the absence of such officer, any other
officer of the rank of President, Vice Chairman of the Board, Vice Chairman,
Executive Vice President or Senior Vice President, or in the absence of all
such officers a presiding officer chosen by a majority vote of the shareholders
present in person or by proxy and entitled to vote thereat shall call such
meeting to order and preside. The Secretary, or in his or her absence, the
appointee of the presiding officer of the meeting shall act as Secretary at the
meetings.
Section 10. VOTING. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association. Shareholders may
vote at any meeting of the shareholders by proxies duly authorized in writing,
but no officer, clerk, teller or bookkeeper of the Bank shall act as proxy.
Proxies shall be valid only for one meeting, to be specified therein, and any
adjournment of such meeting. Proxies shall be dated and shall be filed with
the records of the meeting.
ARTICLE III
DIRECTORS
Section 1. NUMBER, ELECTION AND TERM. The Board of Directors of
the Bank shall consist of not less than five nor more than twenty-five
Directors, as shall be determined from time to time by resolution of a majority
of the full Board or by resolution of the shareholders at any annual or special
meeting; provided, however, that a majority of the full Board may not increase
the number of Directors to a number which (i) exceeds by more than two the
number of Directors last elected by shareholders where such number was fifteen
or less, or (ii) exceeds by more than four the number of
<PAGE> 14
Directors last elected by shareholders where such number was sixteen or more,
but in no event shall the number of Directors exceed twenty-five. Each
Director shall take and subscribe his or her Oath of Office before entering
upon the duties of a Director. Each Director shall be a shareholder of
BankAmerica Corporation, if and to the extent required by law. The Directors
shall be elected at the annual meeting of shareholders, except as provided in
Section 2 of this Article III, and each Director shall hold office until his or
her successor is elected and qualified or until his or her earlier removal.
Section 2. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Vacancies
and newly created directorships resulting from any increase in the authorized
number of Directors may be filled by a majority of the Directors then in
office, though less than a quorum, or by a sole remaining Director, and the
Directors so chosen shall hold office until the next annual election and until
their successors are duly elected and shall qualify or until their earlier
resignations or removals. If there are no Directors in office, then an
election of Directors may be held in the manner provided by statute.
Section 3. RESIGNATIONS. Any Director of the Bank may resign at
any time by giving written notice to the Chairman of the Board or President or
to the Secretary of the Bank. The resignation of any Director shall take
effect at the date of receipt of such notice or at any later date specified
therein; and unless otherwise specified therein the acceptance of such
resignation by the Board of Directors shall not be necessary to make it
effective.
Section 4. GENERAL POWERS. The business of the Bank shall be
managed by or under the direction of its Board of Directors which may exercise
all such powers of the Bank and do all such lawful acts and things as are not
by statute or by the Articles of Association or by these By-laws directed or
required to be exercised or done by the shareholders.
Section 5. COMPENSATION OF DIRECTORS, OFFICERS AND EMPLOYEES. Fees
and expenses payable to Directors shall be in such amounts as shall be
determined by the Board of Directors, except that no Director of the Bank who
receives any salary as an officer or employee thereof shall receive any per
diem or other compensation for attending any meeting of the Board of Directors
or of the Executive Committee or of any other committee. The Board of
Directors shall have power to fix the compensation of all officers and
employees of the Bank.
ARTICLE IV
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. PLACE OF MEETINGS. The Board of Directors of the Bank
<PAGE> 15
may hold meetings, both regular and special, either within or without the State
of California.
Section 2. ORGANIZATIONAL MEETING. The Board of Directors shall
meet for the purpose of organization, the election of officers and the
transaction of other business, on the same day as each annual meeting of
shareholders at such place as may be designated by the presiding officer of
such meeting, or as may be otherwise provided by vote of the shareholders at
such meeting. Notice of such meeting shall not be necessary.
Section 3. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board.
Section 4. SPECIAL MEETINGS. Special meetings of the Board may be
called by the Chairman of the Board or a Vice Chairman of the Board or the
President on two days' notice to each Director, either personally or by mail or
by telegram; special meetings shall be called by the Chairman of the Board or a
Vice Chairman of the Board or President or Secretary in like manner and on like
notice on the written request of any three Directors.
Section 5. QUORUM. At all meetings of the Board a majority of the
Directors shall constitute a quorum for the transaction of business and the act
of a majority of the Directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the Articles of Association. If a
quorum shall not be present at any meeting of the Board of Directors the
Directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 6. ACTION BY WRITTEN CONSENT. Unless otherwise restricted
by the Articles of Association or these By-laws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board
or committee, as the case may be, consent thereto in writing. The written
consents shall be filed with the minutes of proceedings of the Board or
committee.
Section 7. TELEPHONE PARTICIPATION IN MEETINGS. Members of the
Board of Directors or any committees thereof may participate in a meeting of
the Board of Directors or of such committees by means of conference telephone
or other communications equipment by means of which all persons participating
can hear each other, and such participation shall constitute presence in person
at such meeting.
<PAGE> 16
ARTICLE V
COMMITTEES
Section 1. EXECUTIVE COMMITTEE. During the intervals between
meetings of the Board, all power and authority of the Board regarding the
management of the business and affairs of the Bank shall be exercised by the
Executive Committee, except that the committee shall have no power:
(a) To amend the Articles of Association or the By-laws of the Bank.
(b) To recommend to the shareholders of the Bank the sale, lease or
exchange of all or substantially all of the Bank's property and
assets.
(c) To adopt an agreement of merger or consolidation.
(d) To recommend to the shareholders of the Bank the dissolution
of the Bank or a revocation of a dissolution.
(e) To declare a dividend.
(f) To authorize the issuance of stock.
(g) To appoint or remove the Chairman of the Board or the President
of the Bank.
The committee shall consist of such Directors as the Board may from
time to time appoint by resolution passed by a majority of the whole Board.
Section 2. MANAGING COMMITTEE. During intervals between meetings
of the Executive Committee, the Managing Committee shall exercise the power and
authority of the Executive Committee. The committee shall consist of such
Directors or officers as the Board may from time to time appoint by resolution
passed by a majority of the whole Board.
Section 3. AUDITING AND EXAMINING COMMITTEE. The Auditing and
Examining Committee shall provide assistance to the Board in meeting its
responsibilities regarding the adequacy of internal controls, the quality and
integrity of regulatory and financial accounting and reporting and the
effectiveness of internal and external auditing of the Bank and its
subsidiaries. The committee shall take appropriate action to encourage free
and open communication among the Board, the independent accountants, and the
officers of the Bank responsible for internal audit, credit examination,
regulatory and financial accounting and reporting and the internal accounting
controls of the Bank. In carrying out its duties, the committee shall review
reports of regulatory examinations of the Bank, and management letters and
other assessments of the adequacy of internal accounting controls from the
independent accountants and from the internal auditors, together with any
<PAGE> 17
proposed response by management of the Bank; monitor the general condition of
the Bank's credit exposure and deposit concentration; review the adequacy of
the Bank's controls of regulatory and financial accounting and reporting;
recommend to the Board the firm to be employed by the Bank as its independent
accountants, review and make recommendations to the Board regarding the terms
and scope of such firm's engagement, and monitor its performance and
independence; review the Bank's principal periodic financial reports to the
public and to regulatory agencies; review the application of significant
accounting policies to such reports; review significant new or proposed
accounting policy or reporting issues; and review unused Bank properties and
plans for their future use.
The committee shall annually review and approve the scope of the
auditing and credit examination functions of the Bank and shall monitor their
performance. The committee shall also review the adequacy of the oversight by
the boards of directors of the Bank's subsidiaries over the auditing and credit
examination functions in such subsidiaries and may inquire into such matters
and review such reports and other documents regarding the subsidiaries as it
deems appropriate.
The committee may employ independent accountants, outside counsel
and other experts as it deems necessary, and shall have all additional powers
necessary to carry out the foregoing functions and such other functions as may
be assigned by the Board from time to time.
The committee shall consist of such members as the Board may from
time to time appoint by resolution passed by a majority of the whole Board. At
least two members of the committee shall have significant executive,
professional, educational, or regulatory experience in financial, auditing,
accounting, or banking matters as shall be determined by the Board.
No member of the committee shall be, or shall have been within one
year prior to serving as a member of the committee, an officer or employee of
the Bank, BankAmerica Corporation or any of their subsidiaries or affiliates,
and no member shall have any relationship that, in the opinion of the Board,
would interfere with the member's exercise of independent judgment as a member
of the committee, including any significant direct or indirect credit or other
relationships with the Bank, the termination of which likely would materially
and adversely affect the Bank's financial condition or results of operations.
Section 4. EXECUTIVE PERSONNEL AND COMPENSATION COMMITTEE. The
Executive Personnel and Compensation Committee shall have responsibility for,
and shall review and approve, the overall compensation programs for the Bank's
Managing Committee and such other members of the senior management of the Bank
as determined by the committee from time to time by resolution.
The committee shall also advise management regarding executive
succession planning and the selection, development and performance of the
<PAGE> 18
Bank's Managing Committee and senior management as determined by the committee
from time to time.
The committee shall have all additional powers necessary to carry
out its responsibilities and such other duties as may be assigned by the Board
from time to time.
The committee shall consist of such Directors as the Board may from
time to time appoint by resolution passed by a majority of the whole Board.
No member of the committee shall be an active officer of the Bank or
any of its subsidiaries, and no member shall have any relationship that, in the
opinion of the Board, would interfere with the member's exercise of independent
judgment as a member of the committee.
In taking actions with respect to compensation of members of senior
management as determined from time to time by BankAmerica Corporation, the
committee shall take into account the recommendations of the Executive
Personnel and Compensation Committee of BankAmerica Corporation (BAC
committee). If the committee disagrees with any such recommendation, the
committee shall consult with the BAC committee before taking any action.
Section 5. NOMINATING COMMITTEE. The Nominating Committee shall
recommend to the Board criteria for the selection of candidates to serve on the
Board; evaluate all proposed candidates; recommend to the Board nominees to
fill vacancies on the Board; and recommend to the Board prior to the annual
meeting of shareholders a slate of nominees for election to the Board by the
shareholders of the Bank at the annual meeting.
The committee may also review and make recommendations to the
Executive Committee or the Board with respect to the Bank's overall
compensation program for Directors, including salary, perquisites, deferred
compensation plans, stock or stock option plans or other incentive plans, and
retirement plans.
In carrying out its duties the committee shall seek possible
candidates for the Board and otherwise aid in attracting qualified candidates
to the Board. The committee shall be available to the Chairman of the Board or
President and other members of the Board for consultation concerning candidates
for the Board. The committee shall periodically review, assess and make
recommendations to the Board with regard to the size and composition of the
Board. The committee shall have all additional powers necessary to carry out
its responsibilities and such other duties as may be assigned by the Board from
time to time.
The committee shall consist of such Directors as the Board may from
time to time appoint by resolution passed by a majority of the whole Board.
No member of the committee shall be an active officer of the Bank,
BankAmerica Corporation or any of their subsidiaries and no member shall have
<PAGE> 19
any relationship that, in the opinion of the Board, would interfere with the
member's exercise of independent judgment as a member of the committee.
Section 6. PUBLIC POLICY COMMITTEE. The Public Policy Committee
shall advise and make recommendations to the Board and management of the Bank
concerning matters of public and social policy. The committee shall identify
and monitor the social, political and environmental trends and issues that
could affect the Bank's or its subsidiaries' performance and the related
interests of employees, shareholders, customers, and the general public;
evaluate and advise the Board and management on long range plans and programs
for adjusting operations to those trends and issues; provide Community
Reinvestment Act (CRA) oversight to ensure that the CRA activities of the Bank
reflect the Bank's commitment to outstanding performance; and recommend to the
Board and management, as appropriate, action on specific public policy issues,
and advise the Board and management as to the committee's evaluation of related
policies, practices and procedures.
The committee shall have all additional powers necessary to carry
out its responsibilities and such other duties as may be assigned by the Board
from time to time.
The committee shall consist of such Directors as the Board may from
time to time appoint by resolution passed by a majority of the whole Board.
Section 7. TRUST AUDIT COMMITTEE. The Trust Audit Committee is
responsible for discharging the duties of the board with respect to audits of
the fiduciary activities of the Bank. At least once during each calendar year
and within 15 months of the last such audit, the Committee shall direct that
suitable audits be made by auditors responsible only to the board of directors,
and at such time shall ascertain whether fiduciary powers have been
administered according to law, Part 9 of the Regulations of the Comptroller of
the Currency, and sound fiduciary principles. The Committee shall be comprised
of directors, exclusive of active officers of the Bank or members of the trust
committee designated by the board. The Committee shall review regulatory
reports of examination, internal audits, and reports from the Bank's
independent auditors with respect to the Bank's fiduciary activities; and,
shall monitor the internal fiduciary audit function and perform such other
duties which the Board may assign from time to time. In discharging its
duties, the Committee may rely on the evaluations, conclusions and reports of
internal and external auditors and legal counsel utilized by it in the
performance or review of audit functions. At least annually, the Trust Audit
Committee shall make a report to the Board of Directors of the audits and
examination, action(s) taken thereon, and recommendations with respect to the
fiduciary activities.
Section 8. OTHER COMMITTEES. The Board may by resolution passed by
a majority of the whole Board, designate one or more other committees, each
committee to consist of such members as the Board determines. The Board may
designate one or more persons as alternate members of any such committee who
<PAGE> 20
may replace any absent or disqualified member at any meeting of the committee.
Any such committee shall have and may exercise such powers as may be specified
in the resolution creating such committee. Each committee shall have such name
as may be determined from time to time by the Board. The Board may change the
members of any committee, fill vacancies and discharge any committee, with or
without cause, at any time.
Section 9. MEETING REQUIREMENTS. The Board shall designate one
member of each committee to serve as chairman of the committee. Except as
otherwise stated in these By-laws or a resolution of the Board, a number equal
to a majority of the members of a committee shall be deemed to constitute a
quorum for actions of the committee. If a quorum is not present at any meeting
of a committee, the committee members present may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
shall be present. Except as otherwise stated in these By-laws or in a
resolution of the Board, the vote of a majority of the members of a committee
present at a meeting at which a quorum is present shall be necessary for action
to be taken by the committee, and each committee shall hold regular and special
meetings at times and places and upon notice as the committee may determine.
In the absence of any other notice requirements, meetings of a committee may be
called by the chairman of the committee or the Secretary, and must be called by
the chairman of the committee or the Secretary upon the request of any two
members of the committee, on at least 24 hours' notice to each committee member
before the hour appointed for holding such meeting. Notice shall be given
personally, or by leaving the notice at the member's place of business or
residence, or by mailing the notice in San Francisco or Los Angeles, with the
postage thereon fully prepaid, addressed to the member at his or her last known
place of business or residence, or by telegraphing or telecopying the notice to
the member at his or her last known place of business or residence. The method
of notice of a special meeting shall be entered in the minutes of the special
meeting, and the approval of the minutes at any subsequent meeting of the
committee shall be conclusive upon the question of service.
Section 10. ACTION BY WRITTEN CONSENT. Unless otherwise restricted
by these By-laws, any action required or permitted to be taken at any meeting
of any committee may be taken without a meeting, if all members of the
committee consent to the action in writing. The written consents shall be
filed in the minute book of the committee.
Section 11. TELEPHONE PARTICIPATION IN MEETINGS. Members of a
committee may participate in a meeting of the committee by means of conference
telephone or other communications equipment by means of which all persons
participating can hear each other, and such participation shall constitute
presence in person at the meeting.
Section 12. SUBCOMMITTEES. Except as otherwise stated in these
By-laws or a resolution of the Board, each committee may appoint and discharge
subcommittees and may delegate to such subcommittees any of the power and
<PAGE> 21
authority of the committee, subject to such restrictions as the committee may
determine. The committee may authorize such subcommittees to appoint their own
subcommittees and to delegate any of their power and authority. Each
subcommittee shall have such members as the committee shall appoint, provided
that at least one member of the committee shall be a member of the
subcommittee. The name of each subcommittee shall be determined by the
committee or subcommittee which appoints it. Each committee and subcommittee
may designate one or more Directors or officers as alternate members of any
subcommittee, who may replace any specified or unspecified member who is
absent or disqualified at any meeting of the subcommittee. Subcommittees shall
be subject to the same procedural requirements as the committee or
subcommittee which appointed it, including but not limited to the requirements
set forth in this Article V for notices, quorums, action by written consent,
and telephone participation in meetings. Each subcommittee shall report its
actions at the next practicable meeting of the committee or subcommittee for
its review and any action it deems appropriate.
Section 13. REPORTS TO THE BOARD. Except as otherwise stated in
these By-laws or a resolution of the Board, each committee shall keep minutes
of its proceedings and shall report its actions and, at least on a quarterly
basis, the actions of its subcommittees at the next practicable Board meeting
for its review and any action it deems appropriate. Any action of the Board
with respect to the report shall be recorded in the minutes of the meeting of
the Board, as well as in the minute book of the committee.
ARTICLE VI
ADVISORY DIRECTORS AND ADVISORY BOARDS
Section 1. ADVISORY DIRECTORS. The Board of Directors may appoint
such number of Advisory Directors as shall be determined by the Board from time
to time. Such Advisory Directors shall serve at the pleasure of the Board of
Directors and shall have such rights and functions as the Board shall
determine. Advisory Directors shall receive such compensation for their
services as may be fixed by the Board. No Advisory Director who receives a
salary as an officer or employee of the Bank shall receive compensation for
attending any meeting of the Board of Directors or of any committee of the
Board.
Section 2. REGIONAL BOARDS. The Board of Directors may, in its
discretion, create regional Boards to be composed of such persons and to
consist of such number of members as the Board of Directors may appoint, and to
serve for such territory as the Board of Directors may designate. Such
regional Boards and the members thereof shall serve at the pleasure of the
Board of Directors and shall have such rights and functions, and receive such
compensation, as may be fixed by the Board.
<PAGE> 22
Section 3. ADVISORY BOARDS. Whenever, in the opinion of the Board
of Directors, it shall be deemed advisable to have an Advisory Board for any
branch or group of branches of the Bank, the Board of Directors may appoint an
Advisory Board for such branch or group of branches, to be composed of such
persons and to consist of such number as the Board of Directors may appoint and
designate, and to have such rights and functions, and receive such
compensation, as may be fixed by the Board of Directors. The Board of
Directors may by resolution delegate the powers given it by this Section 3 of
Article VI to the Executive Committee, such powers, if so delegated to the
Executive Committee, to be exercised by it subject to the approval of the Board
of Directors. Such Advisory Boards and the members thereof shall serve at the
pleasure of the Board of Directors.
ARTICLE VII
OFFICERS
Section 1. NUMBER AND TITLES. The officers of the Bank may be, and
to the extent required by law shall include: a Chairman of the Board, a
President, one or more Vice Chairmen of the Board, one or more Vice Chairmen,
one or more Executive Vice Presidents, one or more Senior Vice Presidents, one
or more Regional Vice Presidents, one or more Vice Presidents, one or more
Assistant Vice Presidents, a Cashier, one or more Assistant Cashiers, a
Secretary, one or more Assistant Secretaries, a Treasurer, one or more
Assistant Treasurers, and such other officers as the Board may from time to
time by resolution create (the officer titles referenced in such resolutions
being deemed included in these By-laws and incorporated herein by reference as
though set forth fully herein), or as may be appointed in accordance with
Section 2 of this Article. The persons with officer titles listed above or
referenced in the resolutions referred to above, or titles created in
accordance with Section 2 of this Article and referenced in the resolutions
referred to above or listed above, shall be officers of the Bank. The
Secretary or the executive officer of the Bank's human resources or personnel
function or the delegates of either shall maintain or cause to be maintained a
current list of authorized officer titles. The Board of Directors shall
approve the list of authorized officer titles at least annually.
The Board of Directors shall designate one officer of the Bank as
the Chief Executive Officer and may in its discretion confer additional
functional titles, including but not limited to Chief Operating Officer and
Chief Financial Officer. The President shall be a member of the Board of
Directors.
Section 2. APPOINTMENT, TERM OF OFFICE. The officers shall be
appointed by the Board of Directors and shall hold office at the pleasure of
the Board. Notwithstanding anything to the contrary in these By-laws
contained, the Chairman of the Board, the President, any Vice Chairman of the
<PAGE> 23
Board, any Vice Chairman, any Executive Vice President or the executive officer
of the Bank's human resources or personnel function or any delegate of any of
such officers may, in the interim between meetings of the Board of Directors,
make appointments pro-tem to any office listed in Section 1 of this Article or
in the resolutions referred to in Section 1, other than the following:
Chairman of the Board, Chief Executive Officer, President, Chief Operating
Officer, Chief Financial Officer, Vice Chairman of the Board, Vice Chairman,
Executive Vice President, Senior Vice President, Regional Vice President, Vice
President, Cashier, Treasurer and Secretary. Such pro-tem appointments may be
made for the purpose of filling a vacancy or increasing the number of officers,
such appointees pro-tem to hold office until the next succeeding regular
meeting of the Board of Directors or until the earlier revocation of such
appointment. All pro-tem appointees shall hold office at the pleasure of the
Board of Directors which may in its discretion approve, confirm, or revoke any
such pro-tem appointments. Upon any such approval or confirmation, such persons
shall hold office at the pleasure of the Board.
Section 3. COMPENSATION. The compensation of all officers and
other employees of the Bank shall be fixed by the Board of Directors or by a
committee appointed or officers designated for that purpose or in accordance
with procedures established by the Bank's human resources or personnel
function.
Section 4. AUTHORITY, DUTIES, FIDELITY BOND. One person may hold
more than one office, except that the offices of Chairman of the Board and
Secretary or President and Secretary and the offices of President and Cashier
may not be held by the same person. When the signature or approval of two
officers is required, a person holding two offices shall act only as one signer
or approver. The duties and authority of the officers of the Bank, other than
as set forth in these By-laws, may be prescribed and established by the Board
of Directors or the Executive Committee. Each officer shall perform the duties
imposed upon the officer by law, these By-laws, the Board of Directors and the
Executive Committee. Except as otherwise set forth in these By-laws or by the
Board of Directors or the Executive Committee, each officer shall have such
authority and duties as usually are incident to the title and office held. The
Board of Directors shall provide for such bond and fidelity insurance covering
the officers of the Bank and for the faithful and honest discharge of their
duties as they may determine.
Section 5. THE CHAIRMAN OF THE BOARD. The Chairman of the Board
shall preside at all meetings of the shareholders and the Board of Directors
and shall have such other duties and authority as are set forth in these
By-laws or may be assigned by the Board of Directors.
Section 6. THE VICE CHAIRMEN OF THE BOARD. The Board of Directors
may appoint one or more Vice Chairmen of the Board. Each Vice Chairman of the
Board shall have such duties and authority as may be assigned by the Board of
Directors or by the officer to whom such Vice Chairman of the Board reports.
If more than one Vice Chairman of the Board is appointed, the Board
<PAGE> 24
may designate one such Vice Chairman of the Board as Senior Vice Chairman of
the Board.
Section 7. THE PRESIDENT. The President shall have such duties and
authority as are set forth in these By-laws or may be assigned by the Board of
Directors or by the Chairman of the Board.
Section 8. THE VICE CHAIRMEN. The Board of Directors may appoint
one or more Vice Chairmen. Each Vice Chairman shall have such duties and
authority as may be assigned by the Board of Directors or by the officer to
whom such Vice Chairman reports.
Section 9. THE VICE PRESIDENTS. The Board of Directors may appoint
one or more Vice Presidents. The Board of Directors may create categories of
Vice Presidents, including but not limited to Executive Vice Presidents, Senior
Vice Presidents, Regional Vice Presidents and Assistant Vice Presidents. The
Board of Directors, the Chairman of the Board or the President may designate
seniority of ranking among categories of Vice Presidents. Each Vice President
shall have such duties and authority as may be assigned by the Board of
Directors or by the officer to whom such Vice President reports.
Section 10. THE SECRETARY. The Secretary shall have charge and
custody of the corporate seal, records and Minute Books of the Bank, shall keep
correct written minutes of all meetings of shareholders and Directors, and
shall give or cause to be given notice of all meetings of the shareholders and
of the Board of Directors in accordance with these By-laws and as required by
law. The duties of the Secretary may be performed by any Assistant Secretary.
Section 11. THE CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer shall have general executive supervision of the business and affairs of
the Bank.
Section 12. THE CHIEF OPERATING OFFICER. The Chief Operating
Officer shall have such duties and authority as may be assigned by the Chief
Executive Officer to whom the Chief Operating Officer shall report.
Section 13. THE CHIEF FINANCIAL OFFICER. The Chief Financial
Officer shall be the principal financial officer of the Bank.
ARTICLE VIII
CAPITAL STOCK--CERTIFICATES OF STOCK
Section 1. CERTIFICATES, TRANSFER AGENTS AND REGISTRARS. Every
holder of stock in the Bank shall be entitled to have a certificate, signed
<PAGE> 25
by, or in the name of the Bank by, the Chairman of the Board, or the President,
or a Vice Chairman of the Board, or a Vice Chairman or a Vice President, and by
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Bank, certifying the number of shares owned by such
shareholder. Where a certificate is countersigned by a transfer agent other
than the Bank or its employee, or by a registrar other than the Bank or its
employee, the signatures of the officers of the Bank may be facsimiles. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Bank with the same effect as if he or she were such officer,
transfer agent or registrar at the date of issue.
Section 2. LOST, STOLEN, MUTILATED OR DESTROYED CERTIFICATES. The
Board of Directors, a committee of the Board or an officer of the Bank may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Bank alleged to have been
lost, stolen, mutilated or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen,
mutilated or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors, a committee of the Board or an officer of
the Bank may, as a matter of discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen, mutilated or
destroyed certificate or certificates, or such owner's legal representative, to
advertise the same in such manner as shall be required and give the Bank a bond
in such sum as may be directed as indemnity against any claim that may be made
against the Bank with respect to the certificate alleged to have been lost,
stolen, mutilated or destroyed.
Section 3. TRANSFERS OF STOCK. Upon surrender to the Bank or the
transfer agent of the Bank of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Bank to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction
upon its books.
Section 4. REGISTERED SHAREHOLDERS. The Bank shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by law.
Section 5. DIVIDENDS. Dividends upon the capital stock of the
Bank, subject to the provisions of the Articles of Association and the national
banking laws, may be declared by the Board of Directors at any regular or
special meeting. Dividends may be paid in cash, in property, or in shares of
<PAGE> 26
the capital stock, subject to the provisions of the Articles of Association and
the national banking laws.
ARTICLE IX
INDEMNIFICATION
Section 1. RIGHT TO INDEMNIFICATION. Except as provided in Section
4, below, each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that such person, or another person of whom such person is
the legal representative, is or was a Director, officer, or employee of the
Bank or is or was serving at the request of the Bank as a director, officer, or
employee of, or in some other representative capacity for, another corporation
or a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a Director, officer, or employee or
in any other capacity while serving as a Director, officer, or employee, shall
be indemnified and held harmless by the Bank to the fullest extent authorized
by the Delaware General Corporation Law, as the same exists or may hereafter be
amended, against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a Director, officer, or employee and shall inure to the benefit of such
person's heirs, executors and administrators; provided, however, that except as
provided in Section 2 hereof with respect to proceedings seeking to enforce
rights to indemnification, the Bank shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Bank. The right to indemnification conferred in this
Article shall be a contract right and shall include the right to be paid by the
Bank the expenses incurred in defending any such proceeding in advance of its
final disposition; provided, however, that, if the Delaware General Corporation
Law so requires, the payment of such expenses incurred by a Director or officer
in such person's capacity as a Director or officer (and not in any other
capacity in which service was or is rendered by such person while a Director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Bank of an undertaking, by or on behalf of such Director or
officer, to repay all amounts so advanced if it shall ultimately be determined
that such Director or officer is not entitled to be indemnified under this
Article or otherwise.
Section 2. RIGHT OF CLAIMANT TO BRING SUIT. If a claim under
Section 1 of this Article is not paid in full by the Bank within ninety days
<PAGE> 27
after a written claim has been received by the Bank, the claimant may at any
time thereafter bring suit against the Bank to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant shall be entitled to
be paid also the expense of prosecuting such claim. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the Bank)
that the claimant has not met the standards of conduct which make it
permissible under the Delaware General Corporation Law for the Bank to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Bank. Neither the failure of the Bank (including its
Board of Directors, independent legal counsel, or its shareholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because the
claimant has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the Bank (including its
Board of Directors, independent legal counsel, or its shareholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 3. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification
and the payment of expenses incurred in defending a proceeding in advance of
its final disposition conferred in this Article shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the Articles of Association, By-law, agreement, vote of
shareholders or disinterested Directors or otherwise.
Section 4. LIMITATIONS. The Bank shall not indemnify its
Directors, officers, or employees against expenses, penalties, or other
payments incurred in an administrative proceeding or action instituted by an
appropriate bank regulatory agency acting in its regulatory capacity, which
proceeding or action results in a final order assessing civil money penalties
or requiring affirmative action by an individual or individuals in the form of
payments to the Bank.
Section 5. INSURANCE. The Bank may maintain insurance, at its
expense, to protect itself and any Director, officer, or employee of the Bank
serving in any capacity on behalf of the Bank or at its request for any other
entity to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended, whether or not the Bank
would have the power to indemnify such person against such expense, liability
or loss under the Delaware General Corporation Law. Any insurance purchased by
the Bank must exclude from coverage any formal order assessing civil money
penalties against a Director, officer, or employee of the Bank.
<PAGE> 28
ARTICLE X
EMERGENCY
Section 1. APPLICATION. This Article shall operate during any
emergency resulting from any disaster or other emergency condition when a
quorum of the Board of Directors or a Board committee cannot readily be
convened.
Section 2. MEETINGS OF BOARD OR COMMITTEE. A meeting of the Board
of Directors or Board committee may be called by any officer or Director by
giving notice to the Directors or committee members who can be reached by any
means the person calling the meeting deems feasible.
Section 3. CONDUCT OF BUSINESS. During any emergency, the quorum
requirements for all meetings of the Board of Directors and any Board committee
shall be one-fourth of the members.
(a) If no Board of Directors meeting can be held because a quorum
cannot be assembled, then those Directors who can assemble may, by majority
vote, reduce the Board of Directors to not less than five Directors and may
elect emergency Directors.
(b) If only one Director can be found, then that Director may
appoint emergency Directors.
(c) If no Director can be found, then the Chief Executive Officer
or Acting Chief Executive Officer may appoint emergency Directors.
Section 4. SUCCESSION. During any emergency when the Chief
Executive Officer becomes incapacitated, cannot be located, or otherwise is
unable to perform his or her duties, succession to the powers of the Chief
Executive Officer as Acting Chief Executive Officer shall occur in the
following order:
Chairman of the Board,
President,
Vice Chairman of the Board,
Vice Chairman,
any member of Managing Committee,
Cashier.
Priority within rank shall be set by seniority in the ranking office. If
seniority in office dates from the same day, then seniority based on total
length of service shall be determinative.
<PAGE> 29
Notwithstanding the foregoing, the Board of Directors during an emergency may
appoint or replace any Acting Chief Executive Officer, or may change the
priority of succession, as the Board determines.
Section 5. AUTHORITY. During any emergency the Chief Executive
Officer or Acting Chief Executive Officer shall have all authority that officer
deems necessary to protect the interests of the Bank, may appoint emergency
officers, and may delegate authority to them.
Section 6. NO LIABILITY. No officer, Director or employee acting
in accordance with any emergency By-laws or resolutions shall be liable except
for willful misconduct.
Section 7. EFFECT ON BY-LAWS. To the extent not inconsistent with
this emergency By-law, the By-laws of the Bank shall remain in effect during
any emergency. Upon termination of the emergency, this By-law shall cease to
be operative and authority to act as an officer or Director shall be determined
by the other By-laws, except that Directors and officers elected or appointed
pursuant to this By-law shall remain Directors or officers to the extent that
vacancies have been caused by death or incapacity of regular Directors or
officers until their successors are appointed or elected.
Section 8. TERMINATION OF EMERGENCY. Any emergency condition which
causes this By-law to become operative shall be deemed terminated whenever one
of the following conditions is met:
(a) The Directors and emergency Directors determine by majority
vote at a meeting that the emergency condition is over; or
(b) A majority of the Directors elected or appointed pursuant to
the regular By-laws holds a meeting and determines the
emergency condition is over.
ARTICLE XI
MISCELLANEOUS
Section 1. MINUTE BOOK. The organization papers of the Bank, the
returns of the judges of election, and the proceedings of all regular and
special meetings of the Directors and of the shareholders shall be recorded in
the Minute Book and the minutes of each meeting shall be signed by the
Secretary and approved by the Presiding Officer. There shall also be noted by
the Secretary and recorded in the Minute Book the receipt by the Board of
reports of all committees of the Board of Directors and said reports shall be
preserved by the Secretary but need not be recorded in the Minute Book unless
especially ordered by the Board of Directors.
<PAGE> 30
Section 2. CONVEYANCE OF REAL PROPERTY, TRANSFER OF PERSONAL
PROPERTY, AND EXECUTION AND DELIVERY OF DEEDS, LEASES, CONTRACTS, ETC.
Authority to convey real property, transfer personal property, sign, execute
and deliver deeds, leases, contracts, notes, negotiable instruments, agreements
and all other written instruments and documents for and on behalf of the Bank,
other than as set forth in these By-laws or as prescribed by law, shall be
prescribed by resolutions adopted by the Board of Directors of the Bank from
time to time.
Section 3. SEAL. In the execution on behalf of the Bank of any
instrument, document, writing, notice or paper, it shall not be necessary to
affix the corporate seal of the Bank thereon, and any such instrument,
document, writing, notice or paper when executed without said seal affixed
thereon shall be of the same force and effect and as binding on the Bank as if
said corporate seal had been affixed thereon in each instance.
Section 4. WAIVER OF NOTICE. Whenever any notice whatever is
required to be given by law or by these By-laws or the Articles of Association,
a waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
Section 5. AMENDMENTS. These By-laws may be altered or repealed at
any regular meeting of the shareholders or of the Board of Directors or at any
special meeting of the shareholders or of the Board of Directors if notice of
such alteration or repeal be contained in the notice of such special meeting.
Section 6. FISCAL YEAR. The fiscal year of the Bank shall be the
calendar year.
<PAGE> 31
CERTIFICATION
I, Cheryl Sorokin, Secretary of Bank of America National Trust and
Savings Association, a national banking association organized and existing
under and by virtue of the laws of the United States of America and having its
principal place of business in the City and County of San Francisco in the
State of California, certify that the foregoing pages 1 to 3 inclusive
constitute a true and correct copy of the Articles of Association of Bank of
America National Trust and Savings Association, as amended and as they now
exist, and that the foregoing pages 4 to 23 inclusive constitute a true and
correct copy of the Bylaws of Bank of America Trust and Savings Association, as
amended and as they now exist.
Dated: April 25, 1994
/s/ CHERYL SOROKIN
Secretary
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
<PAGE> 32
The undersigned, as Trustee or prospective Trustee under the Indenture of J.C.
Penney Company, Inc., Issuer, dated as of April 1, 1994, does hereby consent
that reports of examinations by Federal, State, Territorial, or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request, in accordance with and to the extent prescribed
under Section 321 of the Trust Indenture Act of 1939.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:_________________________________
A. Soderholm
Vice President
(Name and Title)
Attest:____________________________
M. Lee
Assistant Secretary
EXHIBIT "H"
<PAGE> 33
EXHIBIT I
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the BANK OF AMERICA NT&SA of
San Francisco in the State of California, at the close of business on December
31, 1993 published in response to call made by Comptroller of the Currency,
under Title 12, United States Code, Section 161.
<TABLE>
<CAPTION>
Charter number 13044 - National Bank Region Number 14. Dollar Amounts
---------------
STATEMENT OF RESOURCES AND LIABILITIES In Thousands
---------------
<S> <C> <C>
Cash and balances due from depository institutions :
Noninterest-bearing balances and currency and coin.......................................... $7,653,000
Interest-bearing balances .................................................................. 2,956,000
Securities:
a. Held-to-maturity securities.............................................................. 8,196,000
b. Available-for-sale securities............................................................
Federal funds sold and securities purchased under agreements to resell
in domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds sold ......................................................................... 3,644,000
Securities purchased under agreements to resell ............................................ 649,000
Loans and lease financing receivables:
Loans and leases, net of unearned income ..................................... $99,417,000
Less: Allowance for loan and lease losses .................................... 2,541,000
Less: Allocated transfer risk reserve......................................... 0
------------
Loans and leases, net of unearned income, allowance, and reserve ........................... 96,876,000
Assets held in trading accounts .............................................................. 6,208,000
Premises and fixed assets (including capitalized leases) ..................................... 2,686,000
Other real estate owned ...................................................................... 436,000
Investments in unconsolidated subsidiaries and associated companies .......................... 330,000
Customers' liability to this bank on acceptances outstanding ................................. 735,000
Intangible assets ............................................................................ 2,501,000
Other assets ................................................................................. 3,823,000
------------
Total Assets.................................................................................. $136,693,000
============
Deposits:
In domestic offices .......................................................... $83,916,000
Noninterest-bearing ....................................................... $24,658,000
Interest-bearing .......................................................... 59,258,000
-----------
In foreign offices, Edge and Agreement subsidiaries, and IBFs ................ 22,453,000
Noninterest-bearing ....................................................... $1,303,000
Interest-bearing .......................................................... 21,150,000
----------
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:
Federal funds purchased .................................................................... 2,453,000
Securities sold under agreements to repurchase.............................................. 842,000
Demand notes issued to the U. S. Treasury .................................................... 1,000
Other borrowed money:
a. With original maturity of one year or less...............................................
b. With original maturity of more than one year............................................. 5,396,000
Mortgage indebtedness and obligations under capitalized leases ............................... 42,000
Bank's liability on acceptances executed and outstanding ..................................... 735,000
Subordinated notes and debentures............................................................. 4,163,000
Other liabilities ............................................................................ 4,993,000
-------------
Total liabilities ............................................................................ 124,994,000
-------------
Common stock ................................................................................. 616,000
Surplus (exclude all surplus related to preferred stock)...................................... 5,373,000
Undivided profits and capital reserves ....................................................... 5,808,000
Net unrealized holding gains (losses) on available-for-sale securities........................ 0
Cumulative foreign currency translation adjustments .......................................... (98,000)
-------------
Total equity capital ......................................................................... 11,699,000
-------------
Total liabilities and equity capital ......................................................... $136,693,000
=============
</TABLE>
I, Joseph B. Tharp, Executive Vice President and Financial Controller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best knowledge and belief.
Joseph B. Tharp
February 14, 1994
We, the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
Richard M. Rosenberg )
C. R. Dahl) Directors
Lewis W. Coleman )
<PAGE> 34
Charter No. 13044 -- National Bank Region Number 14
REPORT OF CONDITION
CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF
BANK OF AMERICA NT & SA
OF SAN FRANCISCO IN THE STATE OF CALIFORNIA
At the close of business on December 31, 1993
published in response to call made by Comptroller of the Currency,
under title 12, United States Code, Section 161.
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ASSETS
($ In Thousands)
-----------------
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Cash and balances due from depository institutions :
Noninterest-bearing balances and currency and coin.......................................... $7,653,000
Interest-bearing balances .................................................................. 2,956,000
Securities:
a. Held-to-maturity securities.............................................................. 8,196,000
b. Available-for-sale securities............................................................
Federal funds sold and securities purchased under agreements to resell
in domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds sold ......................................................................... 3,644,000
Securities purchased under agreements to resell............................................. 649,000
Loans and lease financing receivables:
Loans and leases, net of unearned income ..................................... $99,417,000
Less: Allowance for loan and lease losses .................................... 2,541,000
Less: Allocated transfer risk reserve......................................... 0
------------
Loans and leases, net of unearned income, allowance, and reserve ........................... 96,876,000
Assets held in trading accounts .............................................................. 6,208,000
Premises and fixed assets (including capitalized leases) ..................................... 2,686,000
Other real estate owned ...................................................................... 436,000
Investments in unconsolidated subsidiaries and associated companies .......................... 330,000
Customers' liability to this bank on acceptances outstanding ................................. 735,000
Intangible assets............................................................................. 2,501,000
Other assets ................................................................................. 3,823,000
------------
Total assets.................................................................................. $136,693,000
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LIABILITIES
Deposits:
In domestic offices .......................................................... $83,916,000
Noninterest-bearing ....................................................... $24,658,000
Interest-bearing .......................................................... 59,258,000
-----------
In foreign offices, Edge and Agreement subsidiaries, and IBFs ................ 22,453,000
Noninterest-bearing ....................................................... $1,303,000
Interest-bearing .......................................................... 21,150,000
-----------
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:
Federal funds purchased .................................................................... 2,453,000
Securities sold under agreements to repurchase ............................................. 842,000
Demand notes issued to the U. S. Treasury .................................................... 1,000
Trading liabilities...........................................................................
Other borrowed money:
a. With original maturity of one year or less...............................................
b. With original maturity of more than one year............................................. 5,396,000
Mortgage indebtedness and obligations under capitalized leases ............................... 42,000
Bank's liability on acceptances executed and outstanding ..................................... 735,000
Subordinated notes and debentures ............................................................ 4,163,000
Other liabilities ............................................................................ 4,993,000
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Total liabilities............................................................................. 124,994,000
-------------
EQUITY CAPITAL
Common stock ................................................................................. 616,000
Surplus (exclude all surplus related to preferred stock)...................................... 5,373,000
Undivided profits and capital reserves ....................................................... 5,808,000
Net unrealized gains (losses) on available-for-sale securities................................ 0
Cumulative foreign currency translation adjustments .......................................... (98,000)
-------------
Total equity capital.......................................................................... 11,699,000
-------------
Total liabilities and equity capital.......................................................... $136,693,000
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I, Joseph B. Tharp, Executive Vice President and Financial Controller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Joseph B. Tharp
February 14, 1994
We, the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
Richard M. Rosenberg )
C. R. Dahl ) Directors
Lewis W. Coleman )
<PAGE> 1
Exhibit 99
Registration Statement No. ________
PRICING SUPPLEMENT NO. Dated , 19
(To Prospectus Dated , 19 and Prospectus Supplement Dated , 19 )
U.S. $___________
(Principal Amount)
JCPENNEY
Medium-Term Notes, Series __
Due from Nine Months or more from Date of Issue
/ / Book Entry Note / / Fixed Rate
/ / Certificated Note / / Floating Rate
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Trade Date: ________________________________ Issue Price (As a Percentage of Principal Amount):
_________________________________________________
Date of Issue: _____________________________ Interest Payment Date(s): _______________________
Maturity Date: _____________________________ Fixed Interest Rate/Initial Interest Rate:
_________________________________________________
Agent's Commission: _______________________ Net Proceeds to Issuer: _________________________
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If Floating Rate indicate: / / Commercial Paper Rate Note,
/ / Prime Rate Note, / / LIBOR Note,
/ / Federal Funds Effective Rate Note, / / CD Rate Note,
/ / Treasury Rate Note or / / Other _____
and complete the following:
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Interest Reset Dates: ______________________ Spread: _________________________________________
Interest Payment Period: ___________________ Spread Multiplier: ______________________________
Interest Reset Period: _____________________ Maximum Interest Rate, if any: __________________
Interest Determination Dates: ______________ Minimum Interest Rate, if any: __________________
Index Maturity: ___________________________ Calculation Dates: ______________________________
Calculation Agent: ______________________________
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Redemption Information: ________________________________________________________
If Note is denominated in a currency or currency unit other than U.S. dollars,
see attachment.
Debt Securities, including Medium-Term Notes, Series A, may be issued by the
Company in an aggregate principal amount of up to U.S. $1,500,000,000 or the
equivalent in foreign currency or foreign currency units. To date, including
this offering, an aggregate of U.S. $-0-, or the equivalent in foreign currency
or foreign currency units of Medium-Term Notes, Series A, and all other Debt
Securities, has been issued.
<PAGE> 2
Attachment to Pricing Supplement No. _________
Specified Currency or Currency Units: __________________________________________
Payment by holder of purchase price in: / / the Specified Currency or
/ / U.S. dollars
Exchange rate applicable to purchase price if payable in U.S. dollars of
non-U.S. dollar denominated Note: U.S. $1.00 = __________
Payments to the holder of principal, premium, if any, and interest in U.S.
dollars (with an election by the holder to receive payments in the Specified
Currency) _______ or such payments only in the Specified Currency (with no
election by the holder to receive payments in U.S. dollars) ________
Additional Terms:
(Include specific information concerning foreign currency or currency unit, if
any, in which a particular Note is denominated, including historical exchange
rates, authorized denominations and a description of the currency and any
exchange controls.)
