<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) - April 9, 1997
J. C. PENNEY COMPANY, INC.
(Exact name of registrant as specified in its charter)
Delaware 1-777 13-5583779
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File No.) Identification No.)
6501 Legacy Drive
Plano, Texas 75024-3698
(Address of principal (Zip code)
executive offices)
Registrant's telephone number, including area code: (972) 431-1000
<PAGE> 2
Item 5. Other Events.
On April 9, 1997, J. C. Penney Company, Inc. (the "Company") entered
into an Underwriting Agreement (the "Notes Underwriting Agreement") with Credit
Suisse First Boston Corporation, J.P. Morgan Securities Inc., Morgan, Stanley &
Co. Incorporated, BancAmerica Securities, Inc., Bear, Stearns & Co. Inc., and
NationsBanc Capital Markets, Inc. (collectively, the "Notes Underwriters") for
the sale of (a) $325,000,000 aggregate principal amount of its 6.95% Notes Due
2000 (the "2000 Notes") at a price to the public of 99.919% of the principal
amount thereof, (b) $700,000,000 aggregate principal amount of its 7.25% Notes
Due 2002 (the "2002 Notes") at a price to the public of 99.958% of the
principal amount thereof, and (c) $425,000,000 aggregate principal amount of
its 7.60% Notes Due 2007 (the "2007 Notes") at a price of 100.000% of the
principal amount thereof; also on April 9, 1997, the Company entered into an
Underwriting Agreement (the "Debenture Underwriting Agreement") with Credit
Suisse First Boston Corporation, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, BT Securities Corporation, Chase Securities Inc., and Citicorp
Securities, Inc. (collectively, the "Debenture Underwriters") for the sale of
(x) $300,000,000 aggregate principal amount of its 7.95% Debentures Due 2017
(the "2017 Debentures") at a price to the public of 99.520% of the principal
amount thereof, (y) $350,000,000 aggregate principal amount of its 8.125%
Debentures Due 2027 (the "2027 Debentures") at a price to the public of 97.553%
of the principal amount thereof, and (z) $400,000,000 aggregate principal
amount of its 7.40% Debentures Due 2037 (the "2037 Debentures") at a price to
the public of 99.924% of the principal amount thereof (the 2000 Notes, the 2002
Notes, the 2007 Notes, the 2017 Debentures, the 2027 Debentures, and the 2037
Debentures herein collectively called the "Debt Securities"). The closing of
the sale was held on April 14, 1997. The Debt Securities are being issued
pursuant to Registration Statement No. 333-06883, which was filed with the
Securities and Exchange Commission (the "Commission") on June 26, 1996 and
became effective on July 2, 1996, and Registration Statement No. 333- 23339,
which was filed with the Commission on March 14, 1997 and became effective on
March 21, 1997, and the Prospectus dated March 21, 1997, as supplemented by the
Prospectus Supplement dated April 9, 1997, which were filed with the Commission
on April 11, 1997. Pursuant to the Registration Statements, debt securities
were registered for offering under the Securities Act of 1933, as amended, on a
continuous or delayed basis pursuant to the provisions of Rule 415.
<PAGE> 3
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
1(a) Notes Underwriting Agreement among J. C. Penney
Company, Inc. and the Notes Underwriters (dated April
9, 1997).
1(b) Debenture Underwriting Agreement among J. C. Penney
Company, Inc. and the Debenture Underwriters (dated
April 9, 1997).
4(a) Form of 2000 Note.
4(b) Form of 2002 Note.
4(c) Form of 2007 Note.
4(d) Form of 2017 Debenture.
4(e) Form of 2027 Debenture.
4(f) Form of 2037 Debenture.
5 Opinion of C. R. Lotter with respect to the validity
of the Debt Securities.
23(a) Consent of C. R. Lotter (included in Exhibit 5).
<PAGE> 4
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
J. C. PENNEY COMPANY, INC.
/s/ C. R. LOTTER
-------------------------------------
C. R. Lotter
Executive Vice President, Secretary
and General Counsel
Date: April 16, 1997
<PAGE> 5
Exhibit Index
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
1(a) Notes Underwriting Agreement among J. C. Penney Company, Inc.
and the Notes Underwriters (dated April 9, 1997).
1(b) Debenture Underwriting Agreement among J. C. Penney Company,
Inc. and the Debenture Underwriters (dated April 9, 1997).
4(a) Form of 2000 Note.
4(b) Form of 2002 Note.
4(c) Form of 2007 Note.
4(d) Form of 2017 Debenture.
4(e) Form of 2027 Debenture.
4(f) Form of 2037 Debenture.
5 Opinion of C. R. Lotter with respect to the validity of the
Debt Securities.
23(a) Consent of C. R. Lotter (included in Exhibit 5).
</TABLE>
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EXHIBIT 1(a)
J. C. PENNEY COMPANY, INC.
UNDERWRITING AGREEMENT
April 9, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
J.P. MORGAN SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
BANC AMERICA SECURITIES, INC.
BEAR, STEARNS & CO. INC.
NATIONSBANC CAPITAL MARKETS, INC.
c/o Credit Suisse First Boston Corporation
11 Madison Avenue
New York, N.Y. 10010
Ladies and Gentlemen:
1. Introductory. J. C. PENNEY COMPANY, INC., a Delaware corporation
("Company"), proposes to issue and sell the debt securities described in
Schedule B hereto (together, the "Notes"). The Notes will be issued under an
Indenture, dated as of April 1, 1994, between the Company and First Trust of
California, National Association, Successor Trustee to Bank of America National
Trust and Savings Association (the "Indenture"). The several Underwriters set
forth in Schedule A are hereinafter referred to as "Notes Underwriters".
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with the several Notes Underwriters that:
(a) Two registration statements (No. 333-06883 and No. 333-23339),
including a prospectus for each, relating to the Notes have been filed with
the Securities and Exchange Commission ("Commission") and have become
effective. Such registration statements, as amended to the date hereof (but
excluding any amendments relating to securities which are not covered by
this Agreement), are hereinafter referred to as the "Registration
Statements", and the prospectus contained in Registration Statement No.
333-23339, as amended and supplemented by a Prospectus Supplement of even
date herewith, including all material incorporated by reference therein, as
the "Prospectus".
(b) On the respective effective dates of the Registration Statements,
as referred to in Section 2(a) hereof, each Registration Statement
conformed in all material respects to the requirements of the Securities
Act of 1933 ("Act"), the Trust Indenture Act of 1939 ("Trust Indenture
Act"), and the published rules and regulations ("Rules and Regulations") of
the Commission, 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 date
hereof, each Registration Statement and the Prospectus conforms in all
material respects to the requirements of the Act, the Trust Indenture Act
and the Rules and Regulations and none of such documents includes any
untrue statement of a material fact or omits 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 (i) statements in or omissions
from any of such documents based upon written information furnished to the
Company by a Notes Underwriter for use therein, or (ii) statements or
omissions in that part of each Registration Statement which constitutes the
Statement of Eligibility and Qualification under the Trust Indenture Act
(Form T-1) of the Trustee.
3. Purchase, Sale and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the Notes
Underwriters, and the Notes Underwriters agree, severally and not jointly, to
purchase from the Company, at the purchase prices set forth in Schedule B
hereto, plus accrued interest, if any, from April 14, 1997 to the Closing Date
as defined below, the respective principal amounts of Notes set forth in
Schedule A hereto.
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The Company will deliver the Notes to the Notes Underwriters, at the office
of The Chase Manhattan Bank, 450 West 33rd Street, Fifteenth Floor, New York,
New York 10001, Attention: Guy Marzella, against payment of the purchase price
by wire transfer to an account previously designated to Credit Suisse First
Boston Corporation ("Credit Suisse First Boston") by the Company at a bank
acceptable to Credit Suisse First Boston or by official bank check or checks in
federal reserve (same day) funds drawn to the order of the Company, at the
office of the Company, 6501 Legacy Drive, Plano, Texas 75024-3698, at 9:00 A.M.,
Dallas, Texas Time, on April 14, 1997 or at such other time not later than seven
full business days thereafter as you and the Company determine, such time being
herein referred to as the "Closing Date". The Notes so to be delivered will be,
unless otherwise mutually agreed by the Notes Underwriters and the Company, in
fully registered form, in such denominations and registered in such names as the
Notes Underwriters request, and will be made available for checking and
packaging at the above office of The Chase Manhattan Bank, at least 24 hours
prior to the Closing Date.
4. Covenants of the Company. The Company covenants and agrees with the
several Notes Underwriters that:
(a) The Company will advise the Notes Underwriters promptly of any
amendment or supplementation of the Registration Statements or the
Prospectus with respect to the Notes, and of the institution by the
Commission of any stop order proceedings in respect of either Registration
Statement, 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 Notes is required
to be delivered under the Act any event occurs as a result of which the
Prospectus as then amended or supplemented with respect to such Notes would
include an 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, in light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or
supplement the Registration Statements or the Prospectus to comply with the
Act, the Company promptly will prepare and file with the Commission an
amendment or supplement which will correct such statement or omission or
effect such compliance.
(c) Not later than 90 days after the end of the 12-month period
beginning at the end of the fiscal quarter of the Company during which the
Closing Date occurs, the Company will make generally available to its
securityholders an earnings statement covering such 12-month period which
will satisfy the provisions of Section 11(a) of the Act.
(d) The Company will furnish to the Notes Underwriters copies of each
Registration Statement (one of which, to be delivered to counsel for the
Notes Underwriters, will be signed and include all exhibits), the
Prospectus and supplements relating to the Notes, in each case as soon as
available and in such quantities as the Notes Underwriters reasonably
request.
(e) The Company will use its best efforts to arrange for the
qualification of the Notes for sale, and the determination of their
eligibility for investment, under the laws of such jurisdictions as the
Notes Underwriters reasonably designate and will diligently endeavor to
continue such qualifications in effect so long as required for the
distribution of the Notes; provided, however, that the Company shall not be
required to register or qualify, or to maintain qualification, as a foreign
corporation nor, except as to matters and transactions relating to the
offer or sale of the Notes, consent to service of process generally in any
state.
(f) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, and will reimburse the Notes
Underwriters for any expenses (including fees and disbursements of counsel)
incurred by the Notes Underwriters in connection with qualification of the
Notes for sale, and determination of their eligibility for investment,
under the laws of such jurisdictions as the Notes Underwriters reasonably
designate and the printing of memoranda relating thereto, for any fees
charged by investment rating agencies for the rating of the Notes and for
reasonable expenses incurred in distributing preliminary prospectuses and
the Prospectus (including any amendments and supplements thereto) to the
Notes Underwriters.
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(g) So long as any of the Notes are outstanding, the Company will
furnish to the Notes Underwriters (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 available, a copy of each report or definitive proxy
statement of the Company filed with the Commission under the Securities
Exchange Act of 1934 or mailed to stockholders, and (iii) from time to
time, such other information concerning the Company as the Notes
Underwriters may reasonably request.
5. Conditions of Obligations of the Notes Underwriters. The obligations of
the Notes Underwriters to purchase and pay for the Notes will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of Company officers made pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) The Notes Underwriters shall have received a letter of KPMG Peat
Marwick LLP dated the Closing Date, in form and substance satisfactory to
them, with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statements 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 LLP in connection with other
underwritten offerings by the Company.
(b) Prior to the Closing Date, no stop order suspending the
effectiveness of either Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted, or to the
knowledge of the Company or the Notes Underwriters, shall be contemplated
by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any change, or any development involving a
prospective change, in or affecting particularly the business or properties
of the Company and its subsidiaries, taken as a whole, which, in the
judgment of a majority in interest of the Notes Underwriters, materially
impairs the investment quality of the Notes.
(d) The Notes Underwriters shall have received an opinion of C. R.
Lotter, General Counsel of the Company, dated the Closing Date, to the
effect that:
(i) The Company 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 Company 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
and has been duly qualified under the Trust Indenture Act; the Notes
have been duly authorized, executed, authenticated, issued and delivered
and conform in all material respects to the description thereof
contained in the Prospectus; and the Indenture and the Notes constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their 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;
(iii) 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 or sale of the Notes by the Company, 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;
(iv) The execution, delivery and performance of the Indenture and
this Agreement and the issuance and sale of the Notes 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 Company or any
of its property or any agreement or instrument to which the
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Company is a party or by which the Company is bound or to which any of
the property of the Company is subject, or the charter or bylaws of the
Company, and the Company has full power and authority to authorize,
issue and sell the Notes as contemplated by this Agreement;
(v) The Registration Statements have become effective under the
Act, and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of either Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending under the Act; the Registration Statements and the Prospectus,
as of the date of this Agreement, comply 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 either that the
Registration Statements, as of such 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 not
misleading or that the Prospectus contains any untrue statement of a
material fact or omits to state 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; the
descriptions in the Registration Statements 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 required to be described in the Registration
Statements or the Prospectus or to be filed as exhibits to the
Registration Statements 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 Statements or the Prospectus; and
(vi) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The Notes Underwriters shall have received from Dewey Ballantine,
counsel for the Notes Underwriters, such opinion or opinions, dated the
Closing Date, with respect to such of the matters stated in paragraph (d)
hereof and other related matters as the Notes Underwriters may reasonably
require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
(f) The Notes Underwriters shall have received a certificate of the
Chairman of the Board and Chief Executive Officer or any Vice President and
a principal financial or accounting officer of the Company, dated the
Closing Date, in which such officers, to the best of their knowledge after
reasonable investigation, shall state that the representations and
warranties of the Company in this Agreement are true and correct, that the
Company 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, that no stop order suspending the effectiveness of either
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission, and that,
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 Company and its subsidiaries,
taken as a whole, except as set forth or contemplated in the Prospectus or
as described in such certificate.
(g) On the Closing Date, the Debenture Underwriters (as defined in the
Prospectus) shall have simultaneously purchased the Debentures (as defined
in the Prospectus) pursuant to that certain Underwriting Agreement, dated
of even date herewith, among the Company and the Debenture Underwriters.
The Company will furnish the Notes Underwriters with such conformed copies
of such opinions, certificates, letters and documents as the Notes Underwriters
reasonably request.
6. Indemnification. (a) The Company will indemnify and hold harmless each
Notes Underwriter and each person, if any, who controls any Notes Underwriter
within the meaning of the Act against any losses,
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claims, damages or liabilities, joint or several, to which such Notes
Underwriter or such controlling person 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 Statements,
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 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 Notes Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by such
Notes Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable 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 Company by any Notes Underwriter for use therein,
or (ii) in that part of each Registration Statement constituting the Statement
of Eligibility and Qualification under the Trust Indenture Act (Form T-1) of the
Trustee. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Notes Underwriter will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the Registration
Statements and each person, if any, who controls the Company within the meaning
of the Act, against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person 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 Statements, 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 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, 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 made in reliance upon and in
conformity with written information furnished to the Company by such Notes
Underwriter for use therein; and will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity agreement will be in addition to any
liability which such Notes Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 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 this
Section, 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 this
Section. 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 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 recovery is not available under the foregoing indemnification
provisions of this Section, for any reason other than as specified therein, the
parties entitled to indemnification by the terms thereof shall be
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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 Notes (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 Company and
the Notes Underwriters 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 Notes Underwriters were treated as one entity for such purpose). No Notes
Underwriter or any person controlling such Notes Underwriter shall be obligated
to make contribution hereunder which in the aggregate exceeds the total public
offering price of the Notes purchased by such Notes Underwriter under this
Agreement, less the aggregate amount of any damages which such Notes Underwriter
and its controlling persons have otherwise been required to pay in respect of
the same claim or any substantially similar claim. The Notes Underwriters'
obligations to contribute are several in proportion to their respective
underwriting obligations and not joint.
7. Default of Notes Underwriters. If any Notes Underwriter or Notes
Underwriters default in their obligations to purchase Notes hereunder and the
aggregate principal amount of the Notes which such defaulting Notes Underwriter
or Notes Underwriters agreed but failed to purchase does not exceed 10% of the
total principal amount of the Notes, Credit Suisse First Boston may make
arrangements satisfactory to the Company for the purchase of such Notes by other
persons, including any of the Notes Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Notes Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Notes which such defaulting Notes Underwriters agreed but failed to
purchase. If any Notes Underwriter or Notes Underwriters so default and the
aggregate principal amount of Notes with respect to which such default or
defaults occur is more than 10% of the total principal amount of the Notes and
arrangements satisfactory to Credit Suisse First Boston and the Company for the
purchase of such Notes by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Notes Underwriter or the Company, except as provided in Section 8
hereof. As used in this Agreement, the term "Notes Underwriter" includes any
person substituted for a Notes Underwriter under this Section. Nothing herein
will relieve a defaulting Notes Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties, and other statements of
the Company and of the Notes Underwriters 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 Notes
Underwriter or the Company or any of its officers or directors or any
controlling person, and will survive delivery of and payment for the Notes. If
this Agreement is terminated pursuant to Section 7 hereof or if for any reason
the purchase of the Notes by the Notes Underwriters pursuant to this Agreement
is not consummated, the Company shall remain responsible for the expenses to be
paid or reimbursed by it pursuant to Section 4 hereof and the respective
obligations of the Company and the Notes Underwriters pursuant to Section 6
hereof shall remain in effect. If for any reason, the purchase of the Notes by
the Notes Underwriters is not consummated other than because of the termination
of this Agreement pursuant to Section 7, the Company will reimburse the Notes
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) incurred by them in connection with the offering of the Notes.
9. Notices. All communications hereunder will be in writing and if sent to
the Notes Underwriters will be mailed, delivered or telegraphed and confirmed
c/o Credit Suisse First Boston, Attention: Investment Banking
Department -- Transactions Advisory Group to the address first above written and
if sent to the Company will be similarly sent, if by mail, to P.O. Box 10001,
Dallas, Texas 75301-0001 and if sent otherwise, to 6501 Legacy Drive, Plano,
Texas 75024-3698, Attention of the Secretary.
10. Successors. This Underwriting Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 6 hereof,
and no other person will have any right or obligation hereunder.
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11. Representation of Notes Underwriters. Credit Suisse First Boston, as
representative, will act for the several Notes Underwriters in connection with
the offering of the Notes, and any action under this Agreement taken by the
Notes Underwriters jointly or by Credit Suisse First Boston will be binding upon
all the Notes Underwriters.
12. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the several Notes
Underwriters in accordance with its terms.
Very truly yours,
J. C. PENNEY COMPANY, INC.
By /s/ ROBERT B. CAVANAUGH
-----------------------------------
Vice President and Treasurer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON
CORPORATION
J.P. MORGAN SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
BANCAMERICA SECURITIES, INC.
BEAR, STEARNS & CO. INC.
NATIONSBANC CAPITAL MARKETS, INC.
By CREDIT SUISSE FIRST BOSTON
CORPORATION
By /s/ DAVID RUSSELL
---------------------------------
Managing Director
Acting on behalf of itself and as
representative of
the several Notes Underwriters.
7
<PAGE> 8
SCHEDULE A
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
6.95% NOTES 7.25% NOTES 7.60% NOTES
UNDERWRITER DUE 2000 DUE 2002 DUE 2007
----------- ------------------- ------------------- -------------------
<S> <C> <C> <C>
Credit Suisse First Boston
Corporation.......................... $ 91,000,000 $196,000,000 $119,000,000
J.P. Morgan Securities Inc. ........... 91,000,000 196,000,000 119,000,000
Morgan Stanley & Co. Incorporated...... 91,000,000 196,000,000 119,000,000
BancAmerica Securities, Inc. .......... 17,500,000 37,500,000 22,750,000
Bear, Stearns & Co. Inc. .............. 17,250,000 37,250,000 22,750,000
NationsBanc Capital Markets, Inc. ..... 17,250,000 37,250,000 22,500,000
------------ ------------ ------------
Total........................ $325,000,000 $700,000,000 $425,000,000
============ ============ ============
</TABLE>
8
<PAGE> 9
SCHEDULE B
DESCRIPTION OF DEBT SECURITIES
<TABLE>
<S> <C> <C> <C>
Title of Securities: 6.95% Notes Due 2000 7.25% Notes Due 2002 7.60% Notes Due 2007
Aggregate Principal $325,000,000 $700,000,000 $425,000,000
Amount:
Interest rate: 6.95% per annum commencing 7.25% per annum commencing 7.60% per annum commencing
April 14, 1997 April 14, 1997 April 14, 1997
Interest payment dates: April 1 and October 1 April 1 and October 1 April 1 and October 1
commencing October 1, 1997 commencing October 1, 1997 commencing October 1, 1997
Maturity date: April 1, 2000 April 1, 2002 April 1, 2007
Purchase price: 99.519% 99.358% 99.350%
Initial public offering 99.919% 99.958% 100.000%
price:
Dealers' concession: 0.250% 0.350% 0.400%
Reallowance: 0.200% 0.250% 0.250%
Redemption: Not redeemable prior to Not redeemable prior to Not redeemable prior to
maturity maturity maturity
Optional Repayment: None None None
</TABLE>
9
<PAGE> 1
EXHIBIT 1(b)
J. C. PENNEY COMPANY, INC.
UNDERWRITING AGREEMENT
April 9, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
CITICORP SECURITIES, INC.
c/o Credit Suisse First Boston Corporation
11 Madison Avenue
New York, N.Y. 10010
Ladies and Gentlemen:
1. Introductory. J. C. PENNEY COMPANY, INC., a Delaware corporation
("Company"), proposes to issue and sell the debt securities described in
Schedule B hereto (together, the "Debentures"). The Debentures will be issued
under an Indenture, dated as of April 1, 1994, between the Company and First
Trust of California, National Association, Successor Trustee to Bank of America
National Trust and Savings Association (the "Indenture"). The several
Underwriters set forth in Schedule A are hereinafter referred to as "Debenture
Underwriters".
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with the several Debenture Underwriters that:
(a) Two registration statements (No. 333-06883 and No. 333-23339),
including a prospectus for each, relating to the Debentures have been filed
with the Securities and Exchange Commission ("Commission") and have become
effective. Such registration statements, as amended to the date hereof (but
excluding any amendments relating to securities which are not covered by
this Agreement), are hereinafter referred to as the "Registration
Statements", and the prospectus contained in Registration Statement No.
333-23339, as amended and supplemented by a Prospectus Supplement of even
date herewith, including all material incorporated by reference therein, as
the "Prospectus".
(b) On the respective effective dates of the Registration Statements,
as referred to in Section 2(a) hereof, each Registration Statement
conformed in all material respects to the requirements of the Securities
Act of 1933 ("Act"), the Trust Indenture Act of 1939 ("Trust Indenture
Act"), and the published rules and regulations ("Rules and Regulations") of
the Commission, 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 date
hereof, each Registration Statement and the Prospectus conforms in all
material respects to the requirements of the Act, the Trust Indenture Act
and the Rules and Regulations and none of such documents includes any
untrue statement of a material fact or omits 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 (i) statements in or omissions
from any of such documents based upon written information furnished to the
Company by a Debenture Underwriter for use therein, or (ii) statements or
omissions in that part of each Registration Statement which constitutes the
Statement of Eligibility and Qualification under the Trust Indenture Act
(Form T-1) of the Trustee.
3. Purchase, Sale and Delivery of Debentures. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Debenture Underwriters, and the Debenture Underwriters agree, severally and not
jointly, to purchase from the Company, at the purchase prices set forth in
Schedule B hereto, plus accrued interest, if any, from April 14, 1997 to the
Closing Date as defined below, the respective principal amounts of Debentures
set forth in Schedule A hereto.
<PAGE> 2
The Company will deliver the Debentures to the Debenture Underwriters, at
the office of The Chase Manhattan Bank, 450 West 33rd Street, Fifteenth Floor,
New York, New York 10001, Attention: Guy Marzella, against payment of the
purchase price by wire transfer to an account previously designated to Credit
Suisse First Boston Corporation ("Credit Suisse First Boston") by the Company at
a bank acceptable to Credit Suisse First Boston or by official bank check or
checks in federal reserve (same day) funds drawn to the order of the Company, at
the office of the Company, 6501 Legacy Drive, Plano, Texas 75024-3698, at 9:00
A.M., Dallas, Texas Time, on April 14, 1997 or at such other time not later than
seven full business days thereafter as you and the Company determine, such time
being herein referred to as the "Closing Date". The Debentures so to be
delivered will be, unless otherwise mutually agreed by the Debenture
Underwriters and the Company, in fully registered form, in such denominations
and registered in such names as the Debenture Underwriters request, and will be
made available for checking and packaging at the above office of The Chase
Manhattan Bank, at least 24 hours prior to the Closing Date.
4. Covenants of the Company. The Company covenants and agrees with the
several Debenture Underwriters that:
(a) The Company will advise the Debenture Underwriters promptly of any
amendment or supplementation of the Registration Statements or the
Prospectus with respect to the Debentures, and of the institution by the
Commission of any stop order proceedings in respect of either Registration
Statement, 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 Debentures is
required to be delivered under the Act any event occurs as a result of
which the Prospectus as then amended or supplemented with respect to such
Debentures would include an 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, in light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or
supplement the Registration Statements or the Prospectus to comply with the
Act, the Company promptly will prepare and file with the Commission an
amendment or supplement which will correct such statement or omission or
effect such compliance.
(c) Not later than 90 days after the end of the 12-month period
beginning at the end of the fiscal quarter of the Company during which the
Closing Date occurs, the Company will make generally available to its
securityholders an earnings statement covering such 12-month period which
will satisfy the provisions of Section 11(a) of the Act.
(d) The Company will furnish to the Debenture Underwriters copies of
each Registration Statement (one of which, to be delivered to counsel for
the Debenture Underwriters, will be signed and include all exhibits), the
Prospectus and supplements relating to the Debentures, in each case as soon
as available and in such quantities as the Debenture Underwriters
reasonably request.
(e) The Company will use its best efforts to arrange for the
qualification of the Debentures for sale, and the determination of their
eligibility for investment, under the laws of such jurisdictions as the
Debenture Underwriters reasonably designate and will diligently endeavor to
continue such qualifications in effect so long as required for the
distribution of the Debentures; provided, however, that the Company shall
not be required to register or qualify, or to maintain qualification, as a
foreign corporation nor, except as to matters and transactions relating to
the offer or sale of the Debentures, consent to service of process
generally in any state.
(f) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, and will reimburse the Debenture
Underwriters for any expenses (including fees and disbursements of counsel)
incurred by the Debenture Underwriters in connection with qualification of
the Debentures for sale, and determination of their eligibility for
investment, under the laws of such jurisdictions as the Debenture
Underwriters reasonably designate and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the rating
of the Debentures and for
2
<PAGE> 3
reasonable expenses incurred in distributing preliminary prospectuses and
the Prospectus (including any amendments and supplements thereto) to the
Debenture Underwriters.
(g) So long as any of the Debentures are outstanding, the Company will
furnish to the Debenture Underwriters (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 available, a copy of each report or definitive
proxy statement of the Company filed with the Commission under the
Securities Exchange Act of 1934 or mailed to stockholders, and (iii) from
time to time, such other information concerning the Company as the
Debenture Underwriters may reasonably request.
5. Conditions of Obligations of the Debenture Underwriters. The obligations
of the Debenture Underwriters to purchase and pay for the Debentures will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Debenture Underwriters shall have received a letter of KPMG
Peat Marwick LLP dated the Closing Date, in form and substance satisfactory
to them, with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statements 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 LLP in connection with other
underwritten offerings by the Company.
(b) Prior to the Closing Date, no stop order suspending the
effectiveness of either Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted, or to the
knowledge of the Company or the Debenture Underwriters, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any change, or any development involving a
prospective change, in or affecting particularly the business or properties
of the Company and its subsidiaries, taken as a whole, which, in the
judgment of a majority in interest of the Debenture Underwriters,
materially impairs the investment quality of the Debentures.
(d) The Debenture Underwriters shall have received an opinion of C. R.
Lotter, General Counsel of the Company, dated the Closing Date, to the
effect that:
(i) The Company 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 Company 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
and has been duly qualified under the Trust Indenture Act; the
Debentures have been duly authorized, executed, authenticated, issued
and delivered and conform in all material respects to the description
thereof contained in the Prospectus; and the Indenture and the
Debentures constitute valid and legally binding obligations of the
Company, enforceable in accordance with their 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;
(iii) 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 or sale of the Debentures by the Company,
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;
(iv) The execution, delivery and performance of the Indenture and
this Agreement and the issuance and sale of the Debentures and
compliance with the terms and provisions thereof will not
3
<PAGE> 4
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 Company or any of its property or any agreement or
instrument to which the Company is a party or by which the Company is
bound or to which any of the property of the Company is subject, or the
charter or bylaws of the Company, and the Company has full power and
authority to authorize, issue and sell the Debentures as contemplated by
this Agreement;
(v) The Registration Statements have become effective under the
Act, and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of either Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending under the Act; the Registration Statements and the Prospectus,
as of the date of this Agreement, comply 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 either that the
Registration Statements, as of such 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 not
misleading or that the Prospectus contains any untrue statement of a
material fact or omits to state 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; the
descriptions in the Registration Statements 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 required to be described in the Registration
Statements or the Prospectus or to be filed as exhibits to the
Registration Statements 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 Statements or the Prospectus; and
(vi) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The Debenture Underwriters shall have received from Dewey
Ballantine, counsel for the Debenture Underwriters, such opinion or
opinions, dated the Closing Date, with respect to such of the matters
stated in paragraph (d) hereof and other related matters as the Debenture
Underwriters may reasonably require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose
of enabling them to pass upon such matters.
(f) The Debenture Underwriters shall have received a certificate of
the Chairman of the Board and Chief Executive Officer or any Vice President
and a principal financial or accounting officer of the Company, dated the
Closing Date, in which such officers, to the best of their knowledge after
reasonable investigation, shall state that the representations and
warranties of the Company in this Agreement are true and correct, that the
Company 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, that no stop order suspending the effectiveness of either
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission, and that,
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 Company and its subsidiaries,
taken as a whole, except as set forth or contemplated in the Prospectus or
as described in such certificate.
(g) On the Closing Date, the Notes Underwriters (as defined in the
Prospectus) shall have simultaneously purchased the Notes (as defined in
the Prospectus) pursuant to that certain Underwriting Agreement, dated of
even date herewith, among the Company and the Note Underwriters.
The Company will furnish the Debenture Underwriters with such conformed
copies of such opinions, certificates, letters and documents as the Debenture
Underwriters reasonably request.
4
<PAGE> 5
6. Indemnification. (a) The Company will indemnify and hold harmless each
Debenture Underwriter and each person, if any, who controls any Debenture
Underwriter within the meaning of the Act against any losses, claims, damages or
liabilities, joint or several, to which such Debenture Underwriter or such
controlling person 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 Statements, 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 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 Debenture Underwriter and each such controlling person for
any legal or other expenses reasonably incurred by such Debenture Underwriter or
such controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the Company
will not be liable 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 Company by any Debenture Underwriter for use therein, or (ii) in that
part of each Registration Statement constituting the Statement of Eligibility
and Qualification under the Trust Indenture Act (Form T-1) of the Trustee. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Debenture Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the
Registration Statements and each person, if any, who controls the Company within
the meaning of the Act, against any losses, claims, damages or liabilities to
which the Company or any such director, officer or controlling person 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 Statements, 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 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, 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 made in reliance upon and in
conformity with written information furnished to the Company by such Debenture
Underwriter for use therein; and will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action. This indemnity agreement will be in addition to any
liability which such Debenture Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 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 this
Section, 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 this
Section. 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 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.
5
<PAGE> 6
(d) If recovery is not available under the foregoing indemnification
provisions of this Section, 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 Debentures (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 Company and
the Debenture Underwriters 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 Debenture Underwriters were treated as one entity for such purpose). No
Debenture Underwriter or any person controlling such Debenture Underwriter shall
be obligated to make contribution hereunder which in the aggregate exceeds the
total public offering price of the Debentures purchased by such Debenture
Underwriter under this Agreement, less the aggregate amount of any damages which
such Debenture Underwriter and its controlling persons have otherwise been
required to pay in respect of the same claim or any substantially similar claim.
The Debenture Underwriters' obligations to contribute are several in proportion
to their respective underwriting obligations and not joint.
7. Default of Debenture Underwriters. If any Debenture Underwriter or
Debenture Underwriters default in their obligations to purchase Debentures
hereunder and the aggregate principal amount of the Debentures which such
defaulting Debenture Underwriter or Debenture Underwriters agreed but failed to
purchase does not exceed 10% of the total principal amount of the Debentures,
Credit Suisse First Boston may make arrangements satisfactory to the Company for
the purchase of such Debentures by other persons, including any of the Debenture
Underwriters, but if no such arrangements are made by the Closing Date, the non-
defaulting Debenture Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Debentures which such
defaulting Debenture Underwriters agreed but failed to purchase. If any
Debenture Underwriter or Debenture Underwriters so default and the aggregate
principal amount of Debentures with respect to which such default or defaults
occur is more than 10% of the total principal amount of the Debentures and
arrangements satisfactory to Credit Suisse First Boston and the Company for the
purchase of such Debentures by other persons are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Debenture Underwriter or the Company, except as provided in
Section 8 hereof. As used in this Agreement, the term "Debenture Underwriter"
includes any person substituted for a Debenture Underwriter under this Section.
Nothing herein will relieve a defaulting Debenture Underwriter from liability
for its default.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties, and other statements of
the Company and of the Debenture Underwriters 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 Debenture Underwriter or the Company or any of its officers or directors or
any controlling person, and will survive delivery of and payment for the
Debentures. If this Agreement is terminated pursuant to Section 7 hereof or if
for any reason the purchase of the Debentures by the Debenture Underwriters
pursuant to this Agreement is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
4 hereof and the respective obligations of the Company and the Debenture
Underwriters pursuant to Section 6 hereof shall remain in effect. If for any
reason, the purchase of the Debentures by the Debenture Underwriters is not
consummated other than because of the termination of this Agreement pursuant to
Section 7, the Company will reimburse the Debenture Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
them in connection with the offering of the Debentures.
9. Notices. All communications hereunder will be in writing and if sent to
the Debenture Underwriters will be mailed, delivered or telegraphed and
confirmed c/o Credit Suisse First Boston, Attention: Investment Banking
Department -- Transactions Advisory Group to the address first above written and
if sent to the Company will be similarly sent, if by mail, to P.O. Box 10001,
Dallas, Texas 75301-0001 and if sent otherwise, to 6501 Legacy Drive, Plano,
Texas 75024-3698, Attention of the Secretary.
6
<PAGE> 7
10. Successors. This Underwriting Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 6 hereof,
and no other person will have any right or obligation hereunder.
11. Representation of Debenture Underwriters. Credit Suisse First Boston,
as representative, will act for the several Debenture Underwriters in connection
with the offering of the Debentures, and any action under this Agreement taken
by the Debenture Underwriters jointly or by Credit Suisse First Boston will be
binding upon all the Debenture Underwriters.
12. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the several Debenture
Underwriters in accordance with its terms.
Very truly yours,
J. C. PENNEY COMPANY, INC.
By /s/ ROBERT B. CAVANAUGH
-----------------------------------
Vice President and Treasurer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON
CORPORATION
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BT SECURITIES CORPORATION
CHASE SECURITIES INC.
CITICORP SECURITIES, INC.
By CREDIT SUISSE FIRST BOSTON
CORPORATION
By /s/ DAVID RUSSELL
---------------------------------
Managing Director
Acting on behalf of itself and as representative of
the several Debenture Underwriters.
7
<PAGE> 8
SCHEDULE A
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
7.95% DEBENTURES 8.125% DEBENTURES 7.40% DEBENTURES
UNDERWRITER DUE 2017 DUE 2027 DUE 2037
----------- ------------------- ------------------- -------------------
<S> <C> <C> <C>
Credit Suisse First Boston
Corporation........................... $126,000,000 $147,000,000 $168,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................ 126,000,000 147,000,000 168,000,000
BT Securities Corporation............... 16,000,000 18,750,000 21,500,000
Chase Securities Inc. .................. 16,000,000 18,750,000 21,250,000
Citicorp Securities, Inc. .............. 16,000,000 18,500,000 21,250,000
------------ ------------ ------------
Total......................... $300,000,000 $350,000,000 $400,000,000
============ ============ ============
</TABLE>
8
<PAGE> 9
SCHEDULE B
DESCRIPTION OF DEBT SECURITIES
<TABLE>
<S> <C> <C>
Title of Securities: 7.95% Debentures Due 2017 8.125% Debentures Due 2027
Aggregate Principal Amount: $300,000,000 $350,000,000
Interest rate: 7.95% per annum commencing 8.125% per annum commencing
April 14, 1997 April 14, 1997
Interest payment dates: April 1 and October 1 April 1 and October 1
commencing October 1, 1997 commencing October 1, 1997
Maturity date: April 1, 2017 April 1, 2027
Purchase price: 98.645% 96.678%
Initial public offering price: 99.520% 97.553%
Dealers' concession: 0.500% 0.500%
Reallowance: 0.250% 0.250%
Redemption: Not redeemable prior to Redeemable in whole or in
maturity part, at the option of the
Company, on and after April 1,
2007, at the following
redemption prices (expressed
as a percentage of principal
amount) if redeemed during the
12-month period beginning
April 1 of the years
indicated: 102.839% in 2007,
102.555% in 2008, 102.271% in
2009, 101.987% in 2010,
101.703% in 2011, 101.420% in
2012, 101.136% in 2013,
100.852% in 2014, 100.568% in
2015, 100.284% in 2016, and
thereafter at 100% of the
principal amount thereof,
together with accrued interest
to the date of redemption.
Optional Repayment: None None
<CAPTION>
<S> <C>
Title of Securities: 7.40% Debentures Due 2037
Aggregate Principal Amount: $400,000,000
Interest rate: 7.40% per annum commencing
April 14, 1997
Interest payment dates: April 1 and October 1
commencing October 1, 1997
Maturity date: April 1, 2037
Purchase price: 99.299%
Initial public offering price: 99.924%
Dealers' concession: 0.375%
Reallowance: 0.250%
Redemption: Not redeemable prior to
maturity
Optional Repayment: Repayment may be required at
the option of the holder on
April 1, 2005 at 100% of the
principal amount thereof,
together with accrued and
unpaid interest to April 1,
2005
</TABLE>
9
<PAGE> 1
EXHIBIT 4(a)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE 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 NOTE 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.
[FORM OF FACE OF NOTE]
$__________ No
---------------------
CUSIP: 708160 BM7
J. C. PENNEY COMPANY, INC.
6.95% Note Due 2000
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 April
1, 2000, and to pay interest on said principal sum, semiannually on April 1 and
October 1 of each year, at the rate of 6.95% per annum, from the April 1 or the
October 1, 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 April 14, 1997, 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 March 15 or September 15
(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
<PAGE> 2
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 April 14,
1997. 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 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
<PAGE> 3
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the 6.95% Notes Due 2000 referred to in the within-
mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
, AS TRUSTEE
By
---------------------------------
Authorized Officer
[FORM OF ALTERNATE CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the 6.95% Notes Due 2000 referred to in the within-
mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
, AS TRUSTEE
By THE CHASE MANHATTAN BANK
---------------------------------
Authenticating Agent
By
---------------------------------
Authorized Officer
<PAGE> 4
[FORM OF REVERSE OF NOTE]
J. C. PENNEY COMPANY, INC.
6.95% Note Due 2000
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 6.95% Notes Due 2000 (herein called the
"Notes"), limited in aggregate principal amount to $325,000,000.
The Notes may not be redeemed prior to Stated Maturity.
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 $1,000 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> 5
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.
The Company, at any time or from time to time, may satisfy and fully
discharge its obligations with respect to any payment of principal or interest
due on the Notes by depositing in trust with the Trustee money or U.S.
Government Obligations or a combination thereof in such amounts as will
provide, after giving effect in the case of U.S. Government Obligations so
deposited to the principal thereof and interest thereon when due, no less than
the dollar amount which the Company would have been required, in respect of
such payment, to segregate and hold in trust or deposit with the Trustee;
provided, however, that any such deposit shall not affect the rights of the
Holder of any Note to receive payments due on such Notes at the times provided
therein and in the Indenture. If such deposit is sufficient to make all
payments of (1) interest on the Notes prior to their redemption or maturity, as
the case may be, and (2) principal of and interest on the Notes when due upon
redemption or at maturity, as the case may be, all the obligations of the
Company under the Notes and the Indenture as it relates to the Notes shall be
discharged and terminated except as otherwise provided 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
<PAGE> 6
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)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE 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 NOTE 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.
[FORM OF FACE OF NOTE]
$__________ No
---------------------
CUSIP: 708160 BN5
J. C. PENNEY COMPANY, INC.
7.25% Note Due 2002
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 April
1, 2002, and to pay interest on said principal sum, semiannually on April 1 and
October 1 of each year, at the rate of 7.25% per annum, from the April 1 or the
October 1, 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 April 14, 1997, 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 March 15 or September 15
(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
<PAGE> 2
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 April 14,
1997. 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 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
<PAGE> 3
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the 7.25% Notes Due 2002 referred to in the within-
mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
, AS TRUSTEE
By
---------------------------------
Authorized Officer
[FORM OF ALTERNATE CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the 7.25% Notes Due 2002 referred to in the within-
mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
, AS TRUSTEE
By THE CHASE MANHATTAN BANK
---------------------------------
Authenticating Agent
By
---------------------------------
Authorized Officer
<PAGE> 4
[FORM OF REVERSE OF NOTE]
J. C. PENNEY COMPANY, INC.
7.25% Note Due 2002
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 7.25% Notes Due 2002 (herein called the
"Notes"), limited in aggregate principal amount to $700,000,000.
The Notes may not be redeemed prior to Stated Maturity.
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 $1,000 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> 5
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.
The Company, at any time or from time to time, may satisfy and fully
discharge its obligations with respect to any payment of principal or interest
due on the Notes by depositing in trust with the Trustee money or U.S.
Government Obligations or a combination thereof in such amounts as will
provide, after giving effect in the case of U.S. Government Obligations so
deposited to the principal thereof and interest thereon when due, no less than
the dollar amount which the Company would have been required, in respect of
such payment, to segregate and hold in trust or deposit with the Trustee;
provided, however, that any such deposit shall not affect the rights of the
Holder of any Note to receive payments due on such Notes at the times provided
therein and in the Indenture. If such deposit is sufficient to make all
payments of (1) interest on the Notes prior to their redemption or maturity, as
the case may be, and (2) principal of and interest on the Notes when due upon
redemption or at maturity, as the case may be, all the obligations of the
Company under the Notes and the Indenture as it relates to the Notes shall be
discharged and terminated except as otherwise provided 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
<PAGE> 6
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(c)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE 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 NOTE 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.
[FORM OF FACE OF NOTE]
$__________ No
---------------------
CUSIP: 708160 BP0
J. C. PENNEY COMPANY, INC.
7.60% Note Due 2007
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 April 1,
2007, and to pay interest on said principal sum, semiannually on April 1 and
October 1 of each year, at the rate of 7.60% per annum, from the April 1 or the
October 1, 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 April 14, 1997, 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 March 15 or September 15
(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
<PAGE> 2
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 April 14,
1997. 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 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
<PAGE> 3
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the 7.60% Notes Due 2007 referred to in the within-
mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
, AS TRUSTEE
By
---------------------------------
Authorized Officer
[FORM OF ALTERNATE CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the 7.60% Notes Due 2007 referred to in the within-
mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
, AS TRUSTEE
By THE CHASE MANHATTAN BANK
--------------------------------
Authenticating Agent
By
-----------------------------------
Authorized Officer
<PAGE> 4
[FORM OF REVERSE OF NOTE]
J. C. PENNEY COMPANY, INC.
7.60% Note Due 2007
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 7.60% Notes Due 2007 (herein called the
"Notes"), limited in aggregate principal amount to $425,000,000.
The Notes may not be redeemed prior to Stated Maturity.
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 $1,000 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
<PAGE> 5
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.
The Company, at any time or from time to time, may satisfy and fully
discharge its obligations with respect to any payment of principal or interest
due on the Notes by depositing in trust with the Trustee money or U.S.
Government Obligations or a combination thereof in such amounts as will
provide, after giving effect in the case of U.S. Government Obligations so
deposited to the principal thereof and interest thereon when due, no less than
the dollar amount which the Company would have been required, in respect of
such payment, to segregate and hold in trust or deposit with the Trustee;
provided, however, that any such deposit shall not affect the rights of the
Holder of any Note to receive payments due on such Notes at the times provided
therein and in the Indenture. If such deposit is sufficient to make all
payments of (1) interest on the Notes prior to their redemption or maturity, as
the case may be, and (2) principal of and interest on the Notes when due upon
redemption or at maturity, as the case may be, all the obligations of the
Company under the Notes and the Indenture as it relates to the Notes shall be
discharged and terminated except as otherwise provided 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
<PAGE> 6
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(d)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS DEBENTURE 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 DEBENTURE IS EXCHANGEABLE FOR DEBENTURES
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 DEBENTURE (OTHER THAN A TRANSFER OF THIS DEBENTURE 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.
[FORM OF FACE OF DEBENTURE]
$__________ No
------------
CUSIP: 708160 BQ8
J. C. PENNEY COMPANY, INC.
7.95% Debenture Due 2017
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 April
1, 2017, and to pay interest on said principal sum, semiannually on April 1 and
October 1 of each year, at the rate of 7.95% per annum, from the April 1 or the
October 1, 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 April 14, 1997, 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
March 15 or September 15 (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
<PAGE> 2
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 April 14,
1997. 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.
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
<PAGE> 3
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the 7.95% Debentures Due 2017 referred to in the within-
mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
, AS TRUSTEE
By
---------------------------------
Authorized Officer
[FORM OF ALTERNATE CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the 7.95% Debentures Due 2017 referred to in the within-
mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
, AS TRUSTEE
By THE CHASE MANHATTAN BANK
---------------------------------
Authenticating Agent
By
---------------------------------
Authorized Officer
<PAGE> 4
[FORM OF REVERSE OF DEBENTURE]
J. C. PENNEY COMPANY, INC.
7.95% Debenture Due 2017
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 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 7.95%
Debentures Due 2017 (herein called the "Debentures"), limited in aggregate
principal amount to $300,000,000.
The Debentures may not be redeemed prior to Stated Maturity.
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 denominations of $1,000 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> 5
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.
The Company, at any time or from time to time, may satisfy and fully
discharge its obligations with respect to any payment of principal or interest
due on the Debentures by depositing in trust with the Trustee money or U.S.
Government Obligations or a combination thereof in such amounts as will
provide, after giving effect in the case of U.S. Government Obligations so
deposited to the principal thereof and interest thereon when due, no less than
the dollar amount which the Company would have been required, in respect of
such payment, to segregate and hold in trust or deposit with the Trustee;
provided, however, that any such deposit shall not affect the rights of the
Holder of any Debenture to receive payments due on such Debentures at the times
provided therein and in the Indenture. If such deposit is sufficient to make
all payments of (1) interest on the Debentures prior to their redemption or
maturity, as the case may be, and (2) principal of and interest on the
Debentures when due upon redemption or at maturity, as the case may be, all the
obligations of the Company under the Debentures and the Indenture as it relates
to the Debentures shall be discharged and terminated except as otherwise
provided 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
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
<PAGE> 6
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(e)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS DEBENTURE 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 DEBENTURE IS EXCHANGEABLE FOR DEBENTURES
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 DEBENTURE (OTHER THAN A TRANSFER OF THIS DEBENTURE 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.
[FORM OF FACE OF DEBENTURE]
$__________ No
---------------------
CUSIP: 708160 BR6
J. C. PENNEY COMPANY, INC.
8.125% Debenture Due 2027
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 April
1, 2027, and to pay interest on said principal sum, semiannually on April 1 and
October 1 of each year, at the rate of 8.125% per annum, from the April 1 or
the October 1, 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 April 14, 1997, 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
March 15 or September 15 (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
<PAGE> 2
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 April 14,
1997. 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.
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
<PAGE> 3
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the 8.125% Debentures Due 2027 referred to in the within-
mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
, AS TRUSTEE
By
---------------------------------
Authorized Officer
[FORM OF ALTERNATE CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the 8.125% Debentures Due 2027 referred to in the within-
mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
, AS TRUSTEE
By THE CHASE MANHATTAN BANK
-----------------------------
Authenticating Agent
By
---------------------------------
Authorized Officer
<PAGE> 4
[FORM OF REVERSE OF DEBENTURE]
J. C. PENNEY COMPANY, INC.
8.125% Debenture Due 2027
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 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 8.125%
Debentures Due 2027 (herein called the "Debentures"), limited in aggregate
principal amount to $350,000,000.
On and after April 1, 2007, 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 as a percentage of the principal amount) if redeemed during the 12-
month period beginning April 1 of the years indicated:
<TABLE>
<CAPTION>
Redemption
Year Price
---- -----
<S> <C>
2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.839%
2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.555
2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.271
2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.987
2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.703
2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.420
2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.136
2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.852
2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.568
2016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.284
</TABLE>
and thereafter at 100% of the principal amount thereof, together in each case
with accrued interest thereon to the Redemption Date. The Debentures, if
redeemed in part, will be redeemed in multiples of $1,000.
As provided in the Indenture and subject to certain limitations therein
set forth, the
<PAGE> 5
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 denominations of $1,000 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.
The Company, at any time or from time to time, may satisfy and fully
discharge its obligations with respect to any payment of principal or interest
due on the Debentures by depositing in trust with the Trustee money or U.S.
Government Obligations or a combination thereof in such amounts as will
provide, after giving effect in the case of U.S. Government Obligations so
deposited to the principal thereof and interest thereon when due, no less than
the dollar amount which the Company would have been required, in respect of
such payment, to segregate and hold in trust or deposit with the Trustee;
provided, however, that any such deposit shall not affect the rights of the
Holder of any Debenture to receive payments due on such Debentures at the times
provided therein and in the Indenture. If such deposit is sufficient to make
all payments of (1) interest on the Debentures prior to their redemption or
maturity, as the case may be, and (2) principal of and interest on the
Debentures when due upon redemption or at maturity, as the case may be, all the
obligations of the Company under the Debentures and the Indenture as it relates
to the Debentures shall be discharged and terminated except as otherwise
provided 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
<PAGE> 6
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
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(f)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS DEBENTURE 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 DEBENTURE IS EXCHANGEABLE FOR DEBENTURES
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 DEBENTURE (OTHER THAN A TRANSFER OF THIS DEBENTURE 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.
[FORM OF FACE OF DEBENTURE]
$__________ No
--------------------
CUSIP: 708160 BS4
J. C. PENNEY COMPANY, INC.
7.40% Debenture Due 2037
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 April 1,
2037, and to pay interest on said principal sum, semiannually on April 1 and
October 1 of each year, at the rate of 7.40% per annum, from the April 1 or the
October 1, 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 April 14, 1997, 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
March 15 or September 15 (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
<PAGE> 2
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 April 14,
1997. 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.
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
<PAGE> 3
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the 7.40% Debentures Due 2037 referred to in the within-
mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
, AS TRUSTEE
By
---------------------------------
Authorized Officer
[FORM OF ALTERNATE CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the 7.40% Debentures Due 2037 referred to in the within-
mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
, AS TRUSTEE
By THE CHASE MANHATTAN BANK
----------------------------
Authenticating Agent
By
---------------------------------
Authorized Officer
<PAGE> 4
[FORM OF REVERSE OF DEBENTURE]
J. C. PENNEY COMPANY, INC.
7.40% Debenture Due 2037
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 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 7.40%
Debentures Due 2037 (herein called the "Debentures"), limited in aggregate
principal amount to $400,000,000.
The Debentures may not be redeemed prior to Stated Maturity.
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 denominations of $1,000 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
<PAGE> 5
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.
The Company may satisfy and fully discharge its obligations with respect
to any payment of principal or interest due on the Debentures by depositing in
trust with the Trustee money or U.S. Government Obligations or a combination
thereof in such amounts as will provide, after giving effect in the case of
U.S. Government Obligations so deposited to the principal thereof and interest
thereon when due, no less than the dollar amount which the Company would have
been required, in respect of such payment, to segregate and hold in trust or
deposit with the Trustee; provided, however, that any such deposit shall not
affect the rights of the Holder of any Debenture to receive payments due on
such Debentures at the times provided therein and in the Indenture; and
provided further that no such deposit shall be made prior to April 1, 2005. If
such deposit is sufficient to make all payments of (1) interest on the
Debentures prior to their redemption or maturity, as the case may be, and (2)
principal of and interest on the Debentures when due upon redemption or at
maturity, as the case may be, all the obligations of the Company under the
Debentures and the Indenture as it relates to the Debentures shall be
discharged and terminated except as otherwise provided in the Indenture.
Optional Repayment. The registered Holder of this Debenture may elect
to have the Debenture, or any portion of the principal amount hereof that is an
integral multiple of $1,000, repaid on April 1, 2005 at 100% of the principal
amount thereof, together with accrued and unpaid interest to April 1, 2005.
The Holder shall exercise this repayment option by delivering this Debenture
with the "Option to Elect Repayment on April 1, 2005," below, completed. In
order for such an election to be effective, the Company must receive such
election at its office or agency in New York, New York, during the period
beginning on February 1, 2005 and ending at 5:00 p.m. (New York City time) on
March 1, 2005 (or, if March 1, 2005 is not a Business Day, the next succeeding
Business Day). Any such election received by the Company during the period
beginning on February 1, 2005 and ending at 5:00 p.m. (New York City time) on
March 1, 2005 (or, if March 1, 2005 is not a Business Day, the next succeeding
Business Day) shall be irrevocable. The repayment option may be exercised by
the Holder of the Debenture for less than the entire principal amount of the
Debenture, so long as the principal amount that is to be repaid is equal to
$1,000 or an integral multiple of $1,000. All questions as to the validity,
form, eligibility (including time of receipt) and acceptance of any Debenture
for repayment will be determined by the Company, whose determination will be
final and binding. As used herein, the term "Business Day" means a day on
which federally chartered banks located in New York, New York are required or
authorized to open for business (other than a Saturday or Sunday) under the
laws of the United States.
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
<PAGE> 6
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
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> 7
OPTION TO ELECT REPAYMENT ON APRIL 1, 2005
I or we hereby irrevocably elect to exercise the option to have the principal
sum of
-----------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Please insert principal amount as to which repayment is elected)
together with accrued and unpaid interest thereon to April 1, 2005, repaid by
the Company on April 1, 2005. If less than the entire principal amount of the
Debenture is to be repaid, specify the denomination or denominations (which
shall be in authorized denominations) of the Debentures to be issued to the
Holder for the portion of the within Debenture not being repaid (in the absence
of any such specification, one such Debenture will be issued for the portion
not being repaid):
- --------------------------------------------------------------------------------
Dated:
----------------------
Signed: Signature Guarantee:
----------------------------- ------------------
(Sign exactly as name appears (Signature must be an eligible
on the other side of this institution within the meaning of
Debenture) Rule 17A(d)-15 under the Securities
Exchange Act of 1934, as amended)
- --------------------------------------------------------------------------------
<PAGE> 1
EXHIBIT 5
April 14, 1997
Board of Directors
J. C. Penney Company, Inc.
6501 Legacy Drive
Plano, Texas 75024-3698
Ladies and Gentlemen:
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 and its Bylaws, as amended.
I am also familiar with the corporate proceedings taken in connection
with the sale of $325,000,000 aggregate principal amount of 6.95% Notes Due
2000, $700,000,000 aggregate principal amount of 7.25% Notes Due 2002,
$425,000,000 aggregate principal amount of 7.60% Notes Due 2007, $300,000,000
aggregate principal amount of 7.95% Debentures Due 2017, $350,000,000 aggregate
principal amount of 8.125% Debentures Due 2027, and $400,000,000 aggregate
principal amount of 7.40% Debentures Due 2037 (collectively, the "Debt
Securities") to be issued under an Indenture, dated as of April 1, 1994
("Indenture"), between the Company and First Trust of California, National
Association, Successor Trustee to Bank of America National Trust and Savings
Association ("Successor Trustee"), which Indenture relates to the issuance and
sale from time to time of debt securities, each series of which is to be
offered on terms to be determined at the time of sale. I have examined the
Registration Statement on Form S-3 (Commission File No. 333-06883) filed by the
Company with the Securities and Exchange Commission ("Commission") on June 26,
1996 ("Registration Statement No. 333-06883"), which became effective on July
2, 1996, for the registration under the Securities Act of 1933, as amended
("Act"), of $1,500,000,000 aggregate principal amount of debt securities and
the Registration Statement on Form S-3 (Commission File No. 333-23339) filed by
the Company with the Commission on March 14, 1997 ("Registration Statement No.
333-23339"), which became effective on March 21, 1997, for registration under
the Act, of $2,600,000,000 aggregate principal amount (all of which debt
securities may be offered with warrants to purchase debt securities) to be made
on a continuous or delayed basis pursuant to the provisions of Rule 415. I
have also examined a Prospectus Supplement dated April 9, 1997 (to the
Prospectus dated March 21, 1997 which was included in Registration Statement
No. 333-23339) relating to the Debt Securities in the form filed with the
Commission pursuant to Rule 424(b)(5) and such other documents and records as I
have deemed appropriate for purposes of this opinion.
<PAGE> 2
Based upon the foregoing, I am of the opinion as follows:
(i) The execution and delivery of the Indenture and the issuance
and sale of the Debt Securities have been validly authorized by the
Company and the Indenture constitutes a valid and binding obligation
of the Company 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.
(ii) The Debt Securities, when duly executed on behalf of the
Company, authenticated by or on behalf of the Successor Trustee, and
sold by the Company will be validly issued and will constitute valid
and binding obligations of the Company in accordance with their terms
and the terms of the Indenture, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability affecting 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 Registration Statement No. 333-23339
and under the heading "Validity of Debt Securities" in the Prospectus
Supplement.
Very truly yours,
C. R. Lotter
General Counsel
