<PAGE>
REGISTRATION NO. 333-34321
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 11, 1997
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
FEDERATED DEPARTMENT STORES, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C> <C>
DELAWARE 5311 13-3324058
(State of Incorporation) (Primary Standard Industrial (I.R.S. Employer
Classification Code Number) Identification No.)
</TABLE>
151 WEST 34TH STREET
NEW YORK, NEW YORK 10001
(212) 695-4400
AND
7 WEST SEVENTH STREET
CINCINNATI, OHIO 45202
TELEPHONE (513) 579-7000
(Principal Executive Offices)
DENNIS J. BRODERICK, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
FEDERATED DEPARTMENT STORES, INC.
7 WEST SEVENTH STREET
CINCINNATI, OHIO 45202
(513) 579-7000
(Agent for Service)
----------------------------------
COPY TO:
ROBERT A. PROFUSEK, ESQ.
JONES, DAY, REAVIS & POGUE
599 LEXINGTON AVENUE
32ND FLOOR
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 326-3939
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of the Registration Statement, as determined by
market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT WILL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
PROSPECTUS
$1,000,000,000
FEDERATED DEPARTMENT STORES, INC.
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
WARRANTS
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Federated Department Stores, Inc. (the "Company") may offer from time to
time, together or separately, (i) debt securities ("Debt Securities") consisting
of notes, debentures, or other evidences of indebtedness in one or more series,
(ii) shares of its Common Stock, par value $.01 per share (the "Common Stock"),
(iii) shares of its Preferred Stock, par value $.01 per share (the "Preferred
Stock"), and (iv) warrants to purchase Debt Securities, Common Stock, or
Preferred Stock, or any combination thereof, as may be designated by the Company
at the time of the offering (the "Warrants") in amounts, at prices, and on terms
to be determined at the time of the offering. The Debt Securities, Common Stock,
Preferred Stock, and Warrants are collectively called the "Securities".
The Securities may be offered in separate series or issuances at an
aggregate initial public offering price not to exceed $1,000,000,000 or, if
applicable, the equivalent thereof in other currencies, at prices, and on terms
to be determined at the time or times of offering.
The specific terms of the Securities with respect to which this Prospectus
is being delivered are set forth in the accompanying Prospectus Supplement and
include, where applicable, (i) in the case of Debt Securities, the specific
designation, aggregate principal amount, purchase price, maturity, rate (or
method of calculation thereof) and time of payment of interest, if any, any
conversion or exchange provisions, any redemption provisions, any subordination
provisions, and any other specific terms of the Debt Securities offered hereby
not set forth herein under the caption "Description of Debt Securities" in this
Prospectus, and any listing thereof on a securities exchange; (ii) in the case
of Common Stock, the number of shares and any initial public offering price;
(iii) in the case of Preferred Stock, the number of shares, the specific title,
the aggregate amount, any dividend (including the method of calculating payment
of dividends), seniority, liquidation, redemption, voting and other rights, any
terms for any conversion or exchange into other Securities, any listing on a
securities exchange, the initial public offering price, and any other terms; and
(iv) in the case of Warrants, the designation and number, the exercise price,
any listing of the Warrants or the underlying Securities on a securities
exchange, and any other terms in connection with the offering, sale and exercise
of the Warrants.
The Company's Common Stock is listed on the New York Stock Exchange (the
"NYSE") under the trading symbol "FD." Any Common Stock sold pursuant to a
Prospectus Supplement will be listed on the NYSE, subject to official notice of
issuance.
Any statement contained in this Prospectus will be deemed to be modified or
superseded by any inconsistent statement contained in the accompanying
Prospectus Supplement.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The Securities will be sold either through underwriters, dealers, or agents
or directly by the Company. The accompanying Prospectus Supplement sets forth
the names of any underwriters, dealers, or agents involved in the sale of the
Securities in respect of which this Prospectus is being delivered, the proposed
amounts, if any, to be purchased by underwriters, and the compensation, if any,
of such underwriters, dealers, or agents.
------------------------
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
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THE DATE OF THIS PROSPECTUS IS SEPTEMBER 11, 1997.
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES
DESCRIBED HEREIN OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY SUCH
SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IF UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
"FORWARD-LOOKING STATEMENTS" WITHIN THE MEANING OF SECTION 27A OF THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND SECTION 21E OF
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"), ARE
CONTAINED IN, OR INCORPORATED BY REFERENCE INTO, THIS PROSPECTUS OR THE
ACCOMPANYING PROSPECTUS SUPPLEMENT. SUCH FORWARD-LOOKING STATEMENTS ARE SUBJECT
TO A NUMBER OF RISKS AND UNCERTAINTIES, MANY OF WHICH ARE BEYOND THE COMPANY'S
CONTROL. FORWARD-LOOKING STATEMENTS ARE TYPICALLY IDENTIFIED BY THE WORDS
"BELIEVE," "EXPECT," "ANTICIPATE," "INTEND," "ESTIMATE," AND SIMILAR
EXPRESSIONS. ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE CONTEMPLATED BY
THESE FORWARD-LOOKING STATEMENTS AS A RESULT OF VARIOUS FACTORS, INCLUDING
GENERAL ECONOMIC CONDITIONS AND CONDITIONS IN THE RETAIL INDUSTRY, COMPETITIVE
CONSIDERATIONS, AND OTHER FACTORS. ACCORDINGLY, THERE CAN BE NO ASSURANCE THAT
THE RESULTS AND EVENTS CONTEMPLATED BY SUCH FORWARD-LOOKING INFORMATION WILL IN
FACT OCCUR, AND READERS ARE CAUTIONED NOT TO PLACE UNDUE RELIANCE ON THESE
FORWARD-LOOKING STATEMENTS. THE COMPANY DOES NOT UNDERTAKE ANY OBLIGATION TO
UPDATE OR REVISE ANY FORWARD-LOOKING STATEMENTS.
------------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange Act
and in accordance therewith files reports, proxy statements, and other
information with the Securities and Exchange Commission (the "Commission").
Reports, proxy statements, and other information filed by the Company can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at
the Commission's Regional Offices located at 7 World Trade Center, New York, New
York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such materials can be obtained at prescribed rates
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The Common Stock and certain other
securities of the Company are listed on the NYSE. Reports and other information
concerning the Company may also be inspected and copied at the offices of the
NYSE, 20 Broad Street, New York, New York 10005.
The Company has filed a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act. This Prospectus does not
contain all information set forth in the Registration Statement, certain parts
of which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is hereby made to the
Registration Statement, which may be inspected and copied at, or obtained from,
the Commission or the NYSE in the manner described above.
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2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended February
1, 1997 (File No. 1-13536) (the "1996 Form 10-K"), the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended May 3, 1997 (the "First Quarter
Form 10-Q"), the Company's Current Report on Form 8-K dated July 15, 1997, and
all reports and other documents filed by the Company pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Securities
pursuant hereto are incorporated herein by reference.
Any statement contained in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein will be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified will not be deemed to
constitute a part of this Prospectus, except as so modified, and any statement
so superseded will not be deemed to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of any such
person, a copy of any or all of the documents incorporated herein by reference,
other than exhibits to such documents (unless such exhibits are specifically
incorporated by reference into such documents). Requests should be directed to
Federated Department Stores, Inc., 7 West Seventh Street, Cincinnati, Ohio
45202, Attention: Investor Relations (telephone: (513) 579-7780).
3
<PAGE>
THE COMPANY
The Company is one of the leading operators of full-line department stores
in the United States with over 400 department stores in 36 states. The Company's
department stores sell a wide range of merchandise, including men's, women's,
and children's apparel and accessories, cosmetics, home furnishings, and other
consumer goods, and are diversified by size of store, merchandising character,
and character of community served. The Company's department stores are located
at urban or suburban sites, principally in densely populated areas across the
United States. As of the date of this Prospectus, the Company also operates
approximately 150 specialty stores under the names "Aeropostale" and "Charter
Club," and a mail order catalog business under the name "Bloomingdale's By
Mail."
The Company's principal executive offices are located at 151 West 34th
Street, New York, New York 10001, and 7 West Seventh Street, Cincinnati, Ohio
45202. The Company's telephone numbers at such offices are (212) 695-4400 and
(513) 579-7000, respectively.
USE OF PROCEEDS
The principal reason for this offering is to make funds available for
general corporate purposes, which may include the repayment of indebtedness
outstanding from time to time, acquisitions, new store construction, store
expansions, and further investments in technology. Other reasons, if any, for
this offering are set forth in the accompanying Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the periods set forth
below has been computed on a consolidated basis and should be read in
conjunction with the Company's Consolidated Financial Statements (including the
notes thereto) set forth in the 1996 Form 10-K and the First Quarter Form 10-Q.
As a result of substantial acquisition transactions, the Company's results of
operations for its fiscal year ended January 28, 1995 and subsequent periods are
not directly comparable to its results of operations for prior periods.
<TABLE>
<CAPTION>
FISCAL YEAR FISCAL YEAR FISCAL YEAR FISCAL YEAR
13 WEEKS ENDED ENDED ENDED ENDED
ENDED FEBRUARY 1, FEBRUARY 3, JANUARY 28, JANUARY 29,
MAY 3, 1997 1997 1996 1995 1994
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<S> <C> <C> <C> <C> <C>
Consolidated ratio of earnings to fixed
charges (unaudited)(1).................... 1.30x 1.71x 1.31x 1.99x 2.33x
<CAPTION>
FISCAL YEAR
ENDED
JANUARY 30,
1993
-------------
<S> <C>
Consolidated ratio of earnings to fixed
charges (unaudited)(1).................... 1.72x
</TABLE>
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(1) For purposes of computing the ratio of earnings to fixed charges, earnings
consist of income before income taxes and extraordinary items plus fixed
charges (excluding capitalized interest). Fixed charges represent interest
incurred, amortization of debt expense, and that portion of rental expense
on operating leases deemed to be the equivalent of interest.
4
<PAGE>
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities will be issued under an Indenture, dated as of September
10, 1997 (the "Indenture"), between the Company and Citibank, N.A., as Trustee
(the "Trustee"). The statements under this caption are brief summaries of the
material provisions of the Indenture, do not purport to be complete, and are
subject to, and are qualified in their entirety by reference to, all of the
provisions of the Indenture. Except as otherwise defined herein, capitalized
terms used herein have the meanings given to them in the Indenture.
The Indenture does not limit the aggregate amount of Debt Securities which
may be issued thereunder. The Debt Securities may be issued from time to time in
one or more series. Reference is made to the accompanying Prospectus Supplement
for the following terms and other information with respect to the Debt
Securities being offered hereby: (i) the title of such Debt Securities; (ii) any
limit on the aggregate principal amount of such Debt Securities; (iii) the
persons to whom any interest on such Debt Securities will be payable, if other
than the registered holders thereof on the Regular Record Date therefor; (iv)
the date or dates (or manner of determining the same) on which the principal of
such Debt Securities will be payable; (v) the rate or rates (or manner of
determining the same) at which such Debt Securities will bear interest, if any,
and the date or dates from which such interest will accrue; (vi) the dates (or
manner of determining the same) on which such interest will be payable and the
Regular Record Dates for such Interest Payment Dates; (vii) the place or places
where the principal of and any premium and interest on such Debt Securities will
be payable; (viii) the period or periods, if any, within which, and the price or
prices at which, such Debt Securities may be redeemed, in whole or in part, at
the option of the Company; (ix) any mandatory or optional sinking fund or
analogous provisions; (x) the denominations in which any Debt Securities will be
issuable if other than denominations of $1,000 and any integral multiple
thereof; (xi) the currency or currencies or currency units, if other than
currency of the United States of America, in which payment of the principal of
and any premium or interest on such Debt Securities will be payable, and the
terms and conditions of any elections that may be made available with respect
thereto; (xii) any index or formula used to determine the amount of payments of
principal of and any premium or interest on such Debt Securities; (xiii) whether
the Debt Securities are to be issued in whole or in part in the form of one or
more global securities ("Global Securities"), and, if so, the identity of the
depositary, if any, for such Global Security or Securities; (xiv) the terms and
conditions, if any, pursuant to which such Debt Securities are convertible into
or exchangeable for Common Stock or other securities of the Company or other
issuers (provided, however, that any such securities issuable upon conversion or
exchange of Debt Securities will be subject to registration under the Securities
Act or an applicable exemption therefrom); (xv) the applicability of the
provisions described in "-- Defeasance"; (xvi) any subordination provisions
applicable to such Debt Securities; and (xvii) any other terms of the Debt
Securities.
Debt Securities may be issued at a discount from their stated principal
amount. Certain federal income tax considerations and other special
considerations applicable to any Debt Security issued with original issue
discount (an "Original Issue Discount Security") may be described in an
applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units or if the
principal of and any premium and interest on any series of Debt Securities is
payable in a foreign currency or currencies or a foreign currency unit or units,
the restrictions, elections, general tax considerations, specific terms, and
other information with respect to such issue of Debt Securities and such foreign
currency or currencies or foreign currency unit or units will be set forth in an
applicable Prospectus Supplement.
Unless otherwise indicated in an applicable Prospectus Supplement, (i) the
Debt Securities will be issued only in fully registered form in denominations of
$1,000 or integral multiples thereof and
5
<PAGE>
(ii) payment of principal, premium (if any), and interest on the Debt Securities
will be payable, and the exchange, conversion, and transfer of Debt Securities
will be registerable, at the office or agency of the Company maintained for such
purposes and at any other office or agency maintained for such purpose. No
service charge will be made for any registration of transfer or exchange of the
Debt Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge imposed in connection therewith.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a depositary (a "Depositary") or its nominee identified in an applicable
Prospectus Supplement. In such a case, one or more Global Securities will be
issued in a denomination or aggregate denominations equal to the portion of the
aggregate principal amount of Debt Securities of the series to be represented by
such Global Security or Securities. Unless and until it is exchanged in whole or
in part for Debt Securities in registered form, a Global Security may not be
registered for transfer or exchange except as a whole by the Depositary for such
Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any nominee to a successor Depositary or a nominee of such
successor Depositary and except in any other circumstances described in an
applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any portion
of a series of Debt Securities to be represented by a Global Security will be
described in an applicable Prospectus Supplement. The Company expects that the
following provisions will apply to depositary arrangements.
Unless otherwise specified in an applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be represented by a Global Security registered
in the name of such depositary or its nominee. Upon the issuance of such Global
Security, and the deposit of such Global Security with or on behalf of the
Depositary for such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with such depositary or its nominee
("Participants"). The accounts to be credited will be designated by the
underwriters or agents of such Debt Securities or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in such Global Securities will be limited to Participants or Persons
that may hold interests through Participants. Ownership of beneficial interests
by Participants in such Global Security will be shown on, and the transfer of
that ownership interest will be effected only through, records maintained by the
Depositary or its nominee for such Global Security. Ownership of beneficial
interests in such Global Security by Persons that hold through Participants will
be shown on, and the transfer of that ownership interest within such Participant
will be effected only through, records maintained by such Participants. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such laws may impair
the ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Unless otherwise specified in an applicable Prospectus Supplement,
owners of beneficial interests in such Global Securities will not be entitled to
have Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in certificated form, and will not be
considered the owners or Holders thereof for any purpose under the Indenture.
Accordingly, each Person owning a beneficial interest in such Global Security
must rely on the procedures of the Depositary and, if such Person is not a
Participant, on the procedures of the Participant through which such Person owns
its interest, to exercise any rights of a Holder under the
6
<PAGE>
Indenture. The Company understands that, under existing industry practices, if
the Company requests any action of Holders or an owner of a beneficial interest
in such Global Security desires to give any notice or take any action a Holder
is entitled to give or take under Indenture, the Depositary would authorize the
Participants to give such notice or take such action, and Participants would
authorize beneficial owners owning through such Participants to give such notice
or take such action or would otherwise act upon the instructions of beneficial
owners owning through them.
Principal of and any premium and interest on a Global Security will be
payable in the manner described in an applicable Prospectus Supplement. Payment
of principal of, and any premium or interest on, Debt Securities registered in
the name of or held by a Depository or its nominee will be made to the
Depository or its nominee, as the case may be, as the registered owner or the
holder of the Global Security representing such Debt Securities. None of the
Company, the Trustee, any Paying Agent, or the Registrar for such Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security for such Debt Securities or for maintaining,
supervising, or reviewing any records relating to such beneficial ownership
interests.
CERTAIN COVENANTS
MAINTENANCE OF OFFICE OR AGENCY. The Company will be required to maintain
an office or agency in each place of payment for each series of Debt Securities
for notice and demand purposes and for the purposes of presenting or
surrendering Debt Securities for payment, registration of transfer, or exchange.
PAYING AGENTS, ETC. If the Company acts as its own paying agent with
respect to any series of Debt Securities , on or before each due date of the
principal of, or interest on any of the Debt Securities of that series, it will
be required to segregate and hold in trust for the benefit of the persons
entitled thereto a sum sufficient to pay such amount due and to notify the
Trustee promptly of its action or failure so to act. If the Company has one or
more paying agents for any series of Debt Securities, prior to each due date of
the principal of or interest on any Debt Securities of that series, it will
deposit with a paying agent a sum sufficient to pay such amount, and the Company
will promptly notify the Trustee of its action or failure so to act (unless such
paying agent is the Trustee). All moneys paid by the Company to a paying agent
for the payment of principal of and interest on any Debt Securities that remain
unclaimed for two years after such principal or interest has become due and
payable may be repaid to the Company, and thereafter the holder of such Debt
Securities may look only to the Company for payment thereof.
PAYMENT OF TAXES AND OTHER CLAIMS. The Company will be required to pay and
discharge, before the same become delinquent, (i) all taxes, assessments, and
governmental charges levied or imposed upon the Company or any Subsidiary of the
Company or their properties and (ii) all claims that if unpaid would result in a
lien on their property and have a material adverse effect on the business,
assets, financial condition, or results of operations of the Company and its
Subsidiaries, taken as a whole (a "Material Adverse Effect"), unless the same is
being contested by proper proceedings.
MAINTENANCE OF PROPERTIES. The Company will be required to cause all
properties used in the business of the Company or any Subsidiary of the Company
to be maintained and kept in good condition, repair, and working order, except
to the extent that the failure to do so would not have a Material Adverse
Effect.
EXISTENCE. The Company will be required to, and also will be required to
cause its Subsidiaries to, preserve and keep in full force their existence,
charter rights, statutory rights, and franchises, except to the extent that
failure to do so would not have a Material Adverse Effect.
COMPLIANCE WITH LAWS. The Company will be required to and to cause its
Subsidiaries to comply with all applicable laws to the extent the failure to do
so would have a Material Adverse Effect.
7
<PAGE>
RESTRICTIVE COVENANTS. Any restrictive covenants applicable to any series
of Debt Securities will be described in an applicable Prospectus Supplement.
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to Debt
Securities of any series: (i) default in the payment of the principal of (or
premium, if any, on) any Debt Security of that series when it becomes due and
payable; (ii) default in the payment of any interest on any Debt Security of
that series when it becomes due and payable, and continuance of such default for
a period of 30 calendar days; (iii) default in the making of any sinking fund
payment as and when due by the terms of any Debt Security of that series; (iv)
default in the performance, or breach, of any other covenant or warranty of the
Company in the Indenture (other than a covenant included in the Indenture solely
for the benefit of a series of Debt Securities other than that series) and
continuance of such default for a period of 60 calendar days after written
notice thereof has been given to the Company as provided in the Indenture; (v)
any nonpayment at maturity or other default (beyond any applicable grace period)
under any agreement or instrument relating to any other indebtedness of the
Company the principal amount of which is not less than $100 million, which
default results in such indebtedness becoming due prior to its stated maturity
or occurs at the final maturity thereof; (vi) certain events of bankruptcy,
insolvency, or reorganization involving the Company; and (vii) any other Event
of Default provided with respect to Debt Securities of that series. Pursuant to
the Trust Indenture Act, the Trustee is required, within 90 calendar days after
the occurrence of a default in respect of any series of Debt Securities, to give
to the Holders of the Debt Securities of such series notice of all such uncured
defaults known to it (except that, in the case of a default in the performance
of any covenant of the character contemplated in clause (iv) of the preceding
sentence, no such notice to Holders of the Debt Securities of such series will
be given until at least 30 calendar days after the occurrence thereof), except
that, other than in the case of a default of the character contemplated in
clause (i), (ii), or (iii) of the preceding sentence, the Trustee may withhold
such notice if and so long as it in good faith determines that the withholding
of such notice is in the interests of the Holders of the Debt Securities of such
series.
If an Event of Default with respect to Debt Securities occurs and is
continuing, either the Trustee or the Holders of at least 25% in principal
amount of the Debt Securities of that series by notice as provided in the
Indenture may declare the principal amount (or, if the Debt Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all Debt Securities
of that series to be due and payable immediately. However, at any time after a
declaration of acceleration with respect to Debt Securities of any series has
been made, but before a judgment or decree based on such acceleration has been
obtained, the Holders of a majority in principal amount of the Debt Securities
of that series may, under certain circumstances, rescind and annul such
acceleration. See "-- Modification and Waiver" below. If an Event of Default
under clause (vi) of the immediately preceding paragraph occurs, then the
principal of, premium on, if any, and accrued interest on the Debt Securities of
that series will become immediately due and payable without any declaration or
other act on the part of the Trustee of any holder of the Debt Securities of
that series.
The Indenture provides that, subject to the duty of the Trustee thereunder
during an Event of Default to act with the required standard of care, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request or direction of any of the Holders, unless
such Holders shall have offered to the Trustee reasonable security or indemnity.
Subject to certain provisions, including those requiring security or
indemnification of the Trustee, the Holders of a majority in principal amount of
the Debt Securities of any series will have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Debt Securities of that series.
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the Indenture or for any remedy thereunder unless
such Holder shall have previously given to the
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Trustee written notice of a continuing Event of Default and unless the Holders
of at least 25% in aggregate principal amount of the outstanding Debt Securities
of the same series have also made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee, and the
Trustee has received from the Holders of a majority in aggregate principal
amount of the outstanding Debt Securities of the same series a direction
inconsistent with such request and has failed to institute such proceeding
within 60 calendar days. However, such limitations do not apply to a suit
instituted by a Holder of a Debt Security for enforcement of payment of the
principal of and interest on such Debt Security on or after the respective due
dates expressed in such Debt Security.
The Company is required to furnish to the Trustee annually a statement as to
the performance by the Company of its obligations under the Indenture and as to
any default in such performance.
Any additional Events of Default with respect to any series of Debt
Securities, and any variations from the foregoing Events of Default applicable
to any series of Debt Securities, will be described in an applicable Prospectus
Supplement.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debt Securities of each series affected
thereby, except that no such modification or amendment may, without the consent
of the Holder of each Debt Security affected thereby, (i) change the Stated
Maturity of, or any installment of principal of, or interest on, any Debt
Security; (ii) reduce the principal amount of, the rate of interest on, or the
premium, if any, payable upon the redemption of, any Debt Security; (iii) reduce
the amount of principal of an Original Issue Discount Security payable upon
acceleration of the Maturity thereof; (iv) change the place or currency of
payment of principal of, or premium, if any, or interest on any Debt Security;
(v) impair the right to institute suit for the enforcement of any payment on or
with respect to any Debt Security on or after the Stated Maturity or Prepayment
Date thereof; or (vi) reduce the percentage in principal amount of Debt
Securities of any series, the consent of the Holders of which is required for
modification or amendment of the applicable Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults.
The Holders of at least a majority in aggregate principal amount of the Debt
Securities of any series may on behalf of the Holders of all Debt Securities of
that series waive, insofar as that series is concerned, compliance by the
Company with certain covenants of the Indenture. The Holders of not less than a
majority in principal amount of the Debt Securities of any series may, on behalf
of the Holders of all Debt Securities of that series, waive any past default
under the Indenture with respect to that series, except a default in the payment
of the principal of, or premium, if any, or interest on, any Debt Security of
that series or in respect of a provision which under the Indenture cannot be
modified or amended without the consent of the Holder of each Debt Security of
that series affected thereby.
DEFEASANCE
Unless otherwise specified in a Prospectus Supplement applicable to a
particular series of Debt Securities, the Company, at its option, (i) will be
deemed to have been discharged from its obligations with respect to the Debt
Securities of such series (except for certain obligations, including obligations
to register the transfer or exchange of Debt Securities of such series, to
replace destroyed, stolen, lost, or mutilated Debt Securities of such series,
and to maintain an office or agency in respect of the Debt Securities and hold
moneys for payment in trust) or (ii) will be released from its obligations to
comply with the covenants that are under "Certain Covenants" above with respect
to the Debt Securities of such series, and the occurrence of an event described
in clause (iv) under "Events of Default" above with respect to any defeased
covenant and clauses (iii), (v), and (vii) of the "Events of Default" above will
no longer be an Event of Default if, in either case, the Company irrevocably
deposits with the Trustee, in trust, money or
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direct obligations of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or obligations
of an agency or instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not callable at the
issuer's option ("U.S. Government Obligations") or certain depositary receipts
therefor that through the payment of interest thereon and principal thereof in
accordance with their terms will provide money in an amount sufficient to pay
all the principal of (and premium, if any) and any interest on the Debt
Securities of such series on the dates such payments are due in accordance with
the terms of such Debt Securities. Such defeasance may be effected only if,
among other things, (a) no Event of Default or event which with the giving of
notice or lapse or time, or both, would become an Event of Default under the
Indenture shall have occurred and be continuing on the date of such deposit, (b)
no Event of Default described under clause (vi) under "-- Events of Default"
above or event that with the giving of notice or lapse of time, or both, would
become an Event of Default described under such clause (vi) shall have occurred
and be continuing at any time on or prior to the 90th calendar day following
such date of deposit, (c) in the event of defeasance under clause (i) above, the
Company has delivered an Opinion of Counsel, stating that (1) the Company has
received from, or there has been published by, the IRS a ruling or (2) since the
date of the Indenture there has been a change in applicable federal law, in
either case to the effect that, among other things, the holders of the Debt
Securities of such series will not recognize gain or loss for United States
federal income tax purposes as a result of such deposit or defeasance and will
be subject to United States federal income tax in the same manner as if such
defeasance had not occurred, and (d) in the event of defeasance under clause
(ii) above, the Company has delivered an Opinion of Counsel to the effect that,
among other things, the Holders of the Debt Securities of such series will not
recognize gain or loss for United States federal income tax purposes as a result
of such deposit or defeasance and will be subject to United States federal
income tax in the same manner as if such defeasance had not occurred. In the
event the Company fails to comply with its remaining obligations under the
applicable Indenture after a defeasance of such Indenture with respect to the
Debt Securities of any series as described under clause (ii) above and the Debt
Securities of such series are declared due and payable because of the occurrence
of any undefeased Event of Default, the amount of money and U.S. Government
Obligations on deposit with the Trustee may be insufficient to pay amounts due
on the Debt Securities of such series at the time of the acceleration resulting
from such Event of Default. However, the Company will remain liable in respect
of such payments.
SATISFACTION AND DISCHARGE
The Company, at its option, may satisfy and discharge the Indenture (except
for certain obligations of the Company and the Trustee, including, among others,
the obligations to apply money held in trust) when (i) either (a) all Debt
Securities previously authenticated and delivered (other than (1) Debt
Securities that were destroyed, lost, or stolen and that have been replaced or
paid and (2) Debt Securities for the payment of which money has been deposited
in trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust) have been delivered to the Trustee
for cancellation or (b) all such Debt Securities not theretofore delivered to
the Trustee for cancellation (1) have become due and payable, (2) will become
due and payable at their Stated Maturity within one year, or (3) are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name and at
the expense of the Company, and the Company has deposited or caused to be
deposited with the Trustee as trust funds in trust for such purpose an amount
sufficient to pay and discharge the entire indebtedness on such Debt Securities
not previously delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of Debt Securities
which have become due and payable) or to the stated maturity or redemption date,
as the case may be, (ii) the Company has paid or caused to be paid all other
sums payable under the Indenture by the Company, and (iii) the Company has
delivered to the Trustee an Officer's Certificate and
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an Opinion of Counsel, each to the effect that all conditions precedent relating
to the satisfaction and discharge of the Indenture have been satisfied.
LIMITATIONS ON MERGER AND CERTAIN OTHER TRANSACTIONS
Prior to the satisfaction and discharge of the Indenture, the Company may
not consolidate with or merge with or into any other person, or transfer all or
substantially all of its properties and assets to another person unless (i)
either (a) the Company is the continuing or surviving person in such a
consolidation or merger or (b) the person (if other than the Company) formed by
such consolidation or into which the Company is merged or to which all or
substantially all of the properties and assets of the Company are transferred
(the Company or such other person being referred to as the "Surviving Person")
is a corporation organized and validly existing under the laws of the United
States, any state thereof, or the District of Columbia, and expressly assumes,
by an indenture supplement, all the obligations of the Company under the Debt
Securities and the Indenture, (ii) immediately after the transaction and the
incurrence or anticipated incurrence of any indebtedness to be incurred in
connection therewith, no Event of Default exists, and (iii) an officer's
certificate is delivered to the Trustee to the effect that the conditions set
forth in the preceding clauses (i) and (ii) have been satisfied and an opinion
of counsel has been delivered to the Trustee to the effect that the conditions
set forth in the preceding clause (i) have been satisfied. The Surviving Person
will succeed to and be substituted for the Company with the same effect as if it
has been named in the Indenture as a party thereto, and thereafter the
predecessor corporation will be relieved of all obligations and covenants under
the Indenture and the Debt Securities.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
REGARDING THE TRUSTEE
The Indenture contains certain limitations on the right of the Trustee,
should it become a creditor of the Company within three months of, or subsequent
to, a default by the Company to make payment in full of principal of or interest
on any series of Debt Securities when and as the same becomes due and payable,
to obtain payment of claims, or to realize for its own account on property
received in respect of any such claim as security or otherwise, unless and until
such default is cured. However, the Trustee's rights as a creditor of the
Company will not be limited if the creditor relationship arises from, among
other things, the ownership or acquisition of securities issued under any
indenture or having a maturity of one year or more at the time of acquisition by
the Trustee; certain advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by the Indenture; disbursements made in the
ordinary course of business in its capacity as indenture trustee, transfer
agent, registrar, custodian, or paying agent or in any other similar capacity;
indebtedness created as a result of goods or securities sold in a cash
transaction or services rendered or premises rented; or the acquisition,
ownership, acceptance, or negotiation of certain drafts, bills of exchange,
acceptances, or other obligations. The Indenture does not prohibit the Trustee
from serving as trustee under any other indenture to which the Company may be a
party from time to time or from engaging in other transactions with the Company.
If the Trustee acquires any conflicting interest and there is an Event of
Default with respect to any series of Debt Securities, it must eliminate such
conflict or resign.
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DESCRIPTION OF CAPITAL STOCK
AUTHORIZED CAPITAL STOCK
The Company's Certificate of Incorporation provides that the authorized
capital stock of the Company consists of 500.0 million shares of Common Stock
and 125.0 million shares of Preferred Stock.
COMMON STOCK
The holders of the Common Stock are entitled to one vote for each share held
of record on all matters submitted to a vote of stockholders. Subject to
preferential rights that may be applicable to any Preferred Stock, holders of
Common Stock are entitled to receive ratably such dividends as may be declared
by the Board of Directors of the Company out of funds legally available
therefor. In the event of a liquidation, dissolution, or winding up of the
Company, holders of Common Stock will be entitled to share ratably in all assets
remaining after payment of liabilities and the liquidation preference of any
Preferred Stock. Holders of Common Stock have no preemptive rights and have no
rights to convert their Common Stock into any other securities, and there are no
redemption provisions with respect to such shares. The Common Stock is listed on
the NYSE. The transfer agent and registrar for the Common Stock is The Bank of
New York.
PREFERRED STOCK
The Board of Directors of the Company has the authority to issue 125 million
shares of Preferred Stock in one or more series and to fix the designations,
relative powers, preferences, limitations, and restrictions of all shares of
each such series, including without limitation dividend rates, conversion
rights, voting rights, redemption and sinking fund provisions, liquidation
preferences, and the number of shares constituting each such series, without any
further vote or action by the stockholders. The issuance of the Preferred Stock
could decrease the amount of earnings and assets available for distribution to
holders of Common Stock or adversely affect the rights and powers, including
voting rights, of the holders of Common Stock. The issuance of the Preferred
Stock could have the effect of delaying, deferring, or
preventing a change in control of the Company without further action by the
stockholders.
The Board of Directors of the Company has not taken any action to designate
or issue any series of Preferred Stock, other than the Series A Junior
Participating Preferred Stock described below. The terms of any Preferred Stock
offered and the applicable Certificate of Designation, as well as the transfer
agent and registrar therefor, will be set forth in the applicable Prospectus
Supplement.
PREFERRED SHARE PURCHASE RIGHTS
Each outstanding share of Common Stock issued is accompanied by one right (a
"Right") issued pursuant to a share purchase rights agreement between the
Company and The Bank of New York, as rights agent (the "Share Purchase Rights
Agreement"). Each Right entitles the registered holder thereof to purchase from
the Company one one-hundredth of a share of Series A Junior Participating
Preferred Stock, par value $0.01 per share (the "Series A Preferred Shares"), of
the Company at a price (the "Purchase Price") of $62.50 per one one-hundredth of
a Series A Preferred Share, subject to adjustment.
Until the earliest to occur of the following dates (the earliest of such
dates being hereinafter called the "Rights Distribution Date"), the Rights will
be evidenced by the certificates evidencing shares of Common Stock: (i) the
close of business on the tenth business day (or such later date as may be
specified by the Board of Directors of the Company) following the first date of
public announcement by the Company that a person (other than the Company or a
subsidiary or employee benefit or stock ownership plan of the Company), together
with its affiliates and associates, has acquired, or obtained the right to
acquire, beneficial ownership of 20% or more of the outstanding Common Stock
(any such person being hereinafter called an "Acquiring Person"), (ii) the close
of business on the tenth business day (or such later date as may be specified by
the Board of Directors of the Company) following the commencement of a tender
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offer or exchange offer by a person (other than the Company or a subsidiary or
employee benefit or stock ownership plan of the Company), the consummation of
which would result in beneficial ownership by such person of 20% or more of the
outstanding Common Stock, and (iii) the close of business on the tenth business
day following the first date of public announcement by the Company that a
Flip-in Event or a Flip-over Event (as such terms are hereinafter defined) has
occurred.
The Share Purchase Rights Agreement provides that, until the Rights
Distribution Date, the Rights may be transferred with and only with the Common
Stock. Until the Rights Distribution Date (or earlier redemption or expiration
of the Rights), any certificate evidencing shares of Common Stock issued upon
transfer or new issuance of Common Stock will contain a notation incorporating
the Share Purchase Rights Agreement by reference. Until the Rights Distribution
Date (or earlier redemption or expiration of the Rights), the surrender for
transfer of any certificates evidencing Common Stock will also constitute the
transfer of the Rights associated with such certificates. As soon as practicable
following the Rights Distribution Date, separate certificates evidencing the
Rights ("Rights Certificates") will be mailed to holders of record of Common
Stock as of the close of business on the Rights Distribution Date and such
separate Rights Certificates alone will evidence the Rights. No Right is
exercisable at any time prior to the Rights Distribution Date. The Rights will
expire on December 19, 2004 (the "Final Expiration Date") unless earlier
redeemed or exchanged by the Company as described below. Until a Right is
exercised, the holder thereof, as such, will have no rights as a stockholder of
the Company, including without limitation the right to vote or to receive
dividends.
The Purchase Price payable, and the number of Series A Preferred Shares or
other securities issuable, upon exercise of the Rights are subject to adjustment
from time to time to prevent dilution (i) in the event of a stock dividend on,
or a subdivision, combination, or reclassification of, the Series A Preferred
Shares, (ii) upon the grant to holders of the Series A Preferred Shares of
certain rights or warrants to subscribe for or purchase Series A Preferred
Shares at a price, or securities convertible into Series A Preferred Shares with
a conversion price, less than the then-current market price of the Series A
Preferred Shares, or (iii) upon the distribution to holders of the Series A
Preferred Shares of evidences of indebtedness or cash (excluding regular
periodic cash dividends), assets, or stock (excluding dividends payable in
Series A Preferred Shares) or of subscription rights or warrants (other than
those referred to above). The number of outstanding Rights and the number of one
one-hundredths of a Series A Preferred Share issuable upon exercise of each
Right also is subject to adjustment in the event of a stock dividend on the
Common Stock payable in shares of Common Stock or a subdivision, combination, or
reclassification of the Common Stock occurring, in any such case, prior to the
Rights Distribution Date.
The Series A Preferred Shares issuable upon exercise of the Rights will not
be redeemable. Each Series A Preferred Share will be entitled to a minimum
preferential quarterly dividend payment equal to the greater of (i) $1.00 per
share and (ii) an amount equal to 100 times the aggregate dividends declared per
share of Common Stock during the related quarter. In the event of liquidation,
the holders of the Series A Preferred Shares will be entitled to a preferential
liquidation payment equal to the greater of (a) $100 per share and (b) an amount
equal to 100 times the liquidation payment made per share of Common Stock. Each
Series A Preferred Share will have 100 votes, voting together with the Common
Stock. In the event of any merger, consolidation, or other transaction in which
shares of Common Stock are exchanged, each Series A Preferred Share will be
entitled to receive 100 times the amount received per share of Common Stock.
These rights will be protected by customary antidilution provisions. Because of
the nature of the Series A Preferred Shares' dividend, voting and liquidation
rights, the value of the one one-hundredth interest in a Series A Preferred
Share purchasable upon exercise of each Right should approximate the value of
one share of Common Stock.
Rights may be exercised to purchase Series A Preferred Shares only after the
Rights Distribution Date occurs and prior to the occurrence of a Flip-in Event
or Flip-over Event. A Rights Distribution Date resulting from the commencement
of a tender offer or exchange offer described in clause (ii) of the definition
of "Rights Distribution Date" could precede the occurrence of a Flip-in Event or
Flip-over
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Event and thus result in the Rights being exercisable to purchase Series A
Preferred Shares. A Rights Distribution Date resulting from any occurrence
described in clause (i) or clause (iii) of the definition of "Rights
Distribution Date" would necessarily follow the occurrence of a Flip-in Event or
Flip-over Event and thus result in the Rights being exercisable to purchase
shares of Common Stock or other securities as described below.
In the event (a "Flip-in Event") that (i) any person, together with its
affiliates and associates, becomes the beneficial owner of 20% or more of the
outstanding Common Stock, (ii) any Acquiring Person merges into or combines with
the Company and the Company is the surviving corporation or any Acquiring Person
effects certain other transactions with the Company, as described in the Share
Purchase Rights Agreement, or (iii) during such time as there is an Acquiring
Person, there is any reclassification of securities or recapitalization or
reorganization of the Company which has the effect of increasing by more than 1%
the proportionate share of the outstanding shares of any class of equity
securities of the Company or any of its subsidiaries beneficially owned by the
Acquiring Person, proper provision will be made so that each holder of a Right,
other than Rights that are or were owned beneficially by the Acquiring Person
(which, from and after the later of the Rights Distribution Date and the date of
the earliest of any such events, will be void), will thereafter have the right
to receive upon exercise thereof at the then-current exercise price of the
Right, that number of shares of Common Stock (or, under certain circumstances,
an economically equivalent security or securities of the Company) that have a
market value of two times the exercise price of the Right.
In the event (a "Flip-over Event") that, following the first date of public
announcement by the Company that a person has become an Acquiring Person, (i)
the Company merges with or into any person and the Company is not the surviving
corporation, (ii) any person merges with or into the Company and the Company is
the surviving corporation, but all or part of the Common Stock is changed or
exchanged, or (iii) 50% or more of the company's assets or earning power,
including without limitation securities creating obligations of the Company, are
sold, proper provision will be made so that each holder of a Right will
thereafter have the right to receive, upon the exercise thereof at the
then-current exercise price of the Right, that number of shares of common stock
(or, under certain circumstances, an economically equivalent security or
securities) of such other person which at the time of such transaction would
have a market value of two times the exercise price of the Right.
Following the occurrence of any Flip-in Event or Flip-over Event, Rights
(other than any Rights which have become void) may be exercised as described
above, upon payment of the exercise price or, at the option of the holder
thereof, without the payment of the exercise price that would otherwise be
payable. If a holder of Rights elects to exercise Rights without the payment of
the exercise price that would otherwise be payable, such holder will be entitled
to receive upon the exercise of such Rights securities having a market value
equal to the exercise price of the Rights. In addition, at any time after the
later of the Rights Distribution Date and the first occurrence of a Flip-in
Event or a Flip-over Event and prior to the acquisition by any person or group
of affiliated or associated persons of 50% or more of the outstanding Common
Stock, the Company may exchange the Rights (other than any Rights which have
become void), in whole or in part, at an exchange ratio of one share of Common
Stock per Right (subject to adjustment).
With certain exceptions, no adjustments in the Purchase Price will be
required until cumulative adjustments require an adjustment in the Purchase
Price of at least 1%. The Company is not required to issue fractional Series A
Preferred Shares (other than fractions that are integral multiples of one one-
hundredth of a Series A Preferred Share, which may, at the option of the
Company, be evidenced by depositary receipts) or fractional shares of Common
Stock or other securities issuable upon the exercise of Rights. In lieu of
issuing such securities, the Company may make a cash payment, as provided in the
Share Purchase Rights Agreement.
The Company may redeem the Rights in whole, but not in part, at a price of
$0.03 per Right, subject to adjustment and, in the event that the payment of
such amount would be prohibited by loan agreements
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or indentures to which the Company is a party, deferral (the "Redemption
Price"), at any time prior to the close of business on the later of (i) the
Rights Distribution Date and (ii) the first date of public announcement that a
person has become an Acquiring Person. Immediately upon any redemption of the
Rights, the right to exercise the Rights will terminate and the holders will
have only the right to receive the Redemption Price.
The Share Purchase Rights Agreement may be amended by the Company without
the approval of any holders of Rights, including amendments which add other
events requiring adjustment to the Purchase Price payable and the number of
Series A Preferred Shares or other securities issuable upon the exercise of the
Rights which modify procedures relating to the redemption of the Rights,
provided that no amendment may be made which decreases the stated Redemption
Price to an amount less than $0.01 per Right, decreases the period of time
remaining until the Final Expiration Date, or modifies a time period relating to
when the Rights may be redeemed at such time as the Rights are not then
redeemable.
CERTAIN CORPORATE GOVERNANCE MATTERS
The Company's Certificate of Incorporation and By-Laws provide that the
directors of the Company are to be classified into three classes, with the
directors in each class serving for three-year terms and until their successors
are elected. Any additional person elected to the Board of Directors of the
Company will be added to a particular class of directors to be determined at the
time of such election, although in accordance with the Company's Certificate of
Incorporation and By-Laws, the number of directors in each class will be
identical or as nearly as practicable thereto based on the total number of
directors then serving as such.
The Company's By-Laws provide that nominations for election of directors by
the stockholders will be made by the Board of Directors of the Company or by any
stockholder entitled to vote in the election of directors generally. The
Company's By-Laws require that stockholders intending to nominate candidates for
election as directors deliver written notice thereof to the Secretary of the
Company not later than 60 calendar days in advance of the meeting of
stockholders; provided, however, that in the event that the date of the meeting
is not publicly announced by the Company by inclusion in a report filed with the
Commission or furnished to stockholders, or by mail, press release, or otherwise
more than 75 calendar days prior to the meeting, notice by the stockholder to be
timely must be delivered to the Secretary of the Company not later than the
close of business on the tenth day following the date on which such announcement
of the date of the meeting was so communicated. The Company's By-Laws further
require that the notice by the stockholder set forth certain information
concerning such stockholder and the stockholder's nominees, including their
names and addresses, a representation that the stockholder is entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice, a description of all
arrangements or understandings between the stockholders and each nominee, such
other information as would be required to be included in a proxy statement
soliciting proxies for the election of the nominees of such stockholder, and the
consent of each nominee to serve as a director of the Company if so elected. The
chairman of the meeting may refuse to acknowledge the nomination of any person
not made in compliance with these requirements.
In addition to the provisions relating to the classification of the Board of
Directors and the director nomination procedures described above, the Company's
Certificate of Incorporation and By-Laws provide, in general, that (i) the
number of directors of the Company will be fixed, within a specified range, by a
majority of the total number of the Company's directors (assuming no vacancies)
or by the holders of at least 80% of the Company's voting stock, (ii) the
directors of the Company in office from time to time will fill any vacancy or
newly created directorship on the Board of Directors of the Company with any new
director to serve in the class of directors to which he or she is so elected,
(iii) directors of the Company may be removed only for cause by the holders of
at least 80% of the Company's voting stock, (iv) stockholder action can be taken
only at an annual or special meeting of stockholders and not by written consent
in lieu of a meeting, (v) except as described below, special meetings of
stockholders may be
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called only by the Company's Chief Executive Officer or by a majority of the
total number of directors of the Company (assuming no vacancies) and the
business permitted to be conducted at any such meeting is limited to that
brought before the meeting by the Company's Chief Executive Officer or by a
majority of the total number of directors of the Company (assuming no
vacancies), and (vi) subject to certain exceptions, the Board of Directors of
the Company may postpone and reschedule any previously scheduled annual or
special meeting of stockholders. The Company's By-Laws also require that
stockholders desiring to bring any business before an annual meeting of
stockholders deliver written notice thereof to the Secretary of the Company not
later than 60 calendar days in advance of the meeting of stockholders; provided,
however, that in the event that the date of the meeting is not publicly
announced by the Company by press release or inclusion in a report filed with
the Commission or furnished to stockholders more than 75 calendar days prior to
the meeting, notice by the stockholders to be timely must be delivered to the
Secretary of the Company not later than the close of business on the tenth
calendar day following the day on which such announcement of the date of the
meeting was so communicated. The Company's By-Laws further require that the
notice by the stockholder set forth a description of the business to be brought
before the meeting and the reasons for conducting such business at the meeting
and certain information concerning the stockholder proposing such business and
the beneficial owner, if any, on whose behalf the proposal is made including
their names and addresses, the class and number of shares of the Company, that
are owned beneficially and of record by each of them, and any material interest
of either of them in the business proposed to be brought before the meeting.
Upon the written request of the holders of not less than 15% of the Company's
voting stock, the Board of Directors of the Company will be required to call a
meeting of stockholders for the purpose specified in such written request and
fix a record date for the determination of stockholders entitled to notice of
and to vote at such meeting (which record date may not be later than 60 calendar
days after the date of receipt of notice of such meeting), provided that in the
event that the Board of Directors of the Company calls an annual or special
meeting of stockholders to be held not later than 90 calendar days after receipt
of any such written request, no separate special meeting of stockholders as so
requested will be required to be convened provided that the purposes of such
annual or special meeting called by the Board of Directors of the Company
include (among others) the purposes specified in such written request of the
stockholders.
Under applicable provisions of Delaware law, the approval of a Delaware
company's board of directors, in addition to stockholder approval, is required
to adopt any amendment to the company's certificate of incorporation, but a
company's by-laws may be amended either by action of its stockholders or, if the
company's certificate of incorporation so provides, its board of directors. The
Company's Certificate of Incorporation and By-Laws provide that (i) except as
described below, the provisions summarized above and the provisions relating to
the classification of the Company's Board of Directors and nominating procedures
may not be amended by the stockholders, nor may any provision inconsistent
therewith be adopted by the stockholders, without the affirmative vote of the
holders of at least 80% of the Company's voting stock, voting together as single
class, except that if any such action (other than any direct or indirect
amendments to the provision requiring that stockholder action be taken at a
meeting of stockholders rather than by written consent in lieu of a meeting) is
approved by the holders of a majority, but less than 80%, of the
then-outstanding voting stock (in addition to any other approvals require by
law, including approval by the Board of Directors of the Company with respect to
any amendment to the Company's Certificate of Incorporation), such action will
be effective as of one year from the date of adoption, or (ii) the Company's
By-Law provisions relating to the right of stockholders to cause special
meetings of stockholders to be called and to the composition of certain
directorate committees may not be amended by the Company's Board of Directors
without stockholder approval.
The Company is subject to Section 203 of the General Corporation Law of the
State of Delaware (the "DGCL"), which restricts the consummation of certain
business combination transactions in certain circumstances. In addition, the
Company's certificate of incorporation contains provisions that are
substantially similar to those contained in Section 203 of the DGCL that
restrict business combination transactions with (i) any person or group that
became or is deemed to have become the beneficial owner of
16
<PAGE>
15% or more of the voting stock of the Company as a result of its receipt of
Common Stock or warrants pursuant to Macy's plan of reorganization that
thereafter becomes the beneficial owner of an additional 1% or more of the
voting stock of the Company and (ii) any other person or group that becomes the
beneficial owner of 15% more of the voting stock of the Company.
The foregoing provisions of the Company's Certificate of Incorporation, the
provisions of its By-Laws relating to advance notice of stockholder nominations,
and the provisions of the Share Purchase Rights Agreement (see "--Preferred
Share Purchase Rights") may discourage or make more difficult the acquisition of
control of the Company by means of a tender offer, open market purchase, proxy
contest, or otherwise. These provisions are intended to discourage or may have
the effect of discouraging certain types of coercive takeover practices and
inadequate takeover bids and to encourage persons seeking to acquire control of
the Company first to negotiate with the Company. The Company's management
believes that the foregoing measures, many of which are substantially similar to
the takeover-related measures in effect for many other publicly held companies,
provide benefits by enhancing the Company's potential ability to negotiate with
the proponent of an unfriendly or unsolicited proposal to take over or
restructure the Company that outweigh the disadvantages of discouraging such
proposals because, among other things, negotiation of such proposals could
result in an improvement of their terms.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Debt Securities, Common
Stock, Preferred Stock, Depositary Shares, or any combination thereof. Warrants
may be issued independently, together with any other Securities offered by a
Prospectus Supplement, and may be attached to or separate from such Securities.
Warrants may be issued under warrant agreements (each, a "Warrant Agreement") to
be entered into between the Company and a warrant agent specified in the
applicable Prospectus Supplement (the "Warrant Agent"). The Warrant Agent will
act solely as an agent of the Company in connection with the Warrants of a
particular series and will not assume any obligation or relationship of agency
or trust for or with any holders or beneficial owners of Warrants. The following
sets forth certain general terms and provisions of the Warrants offered hereby.
Further terms of the Warrants and the applicable Warrant Agreement will be set
forth in the applicable Prospectus Supplement.
The applicable Prospectus Supplement will describe the terms of the Warrants
in respect of which this Prospectus is being delivered, including, where
applicable, the following: (i) the title of such Warrants; (ii) the aggregate
number of such Warrants; (iii) the price or prices at which such Warrants will
be issued; (iv) the designation, number and terms of the Debt Securities, Common
Stock, Preferred Stock, Depositary Shares, or combination thereof, purchasable
upon exercise of such Warrants; (v) the designation and terms of the other
Securities, if any, with which such Warrants are issued and the number of such
Warrants issued with each such Security; (vi) the date, if any, on and after
which such Warrants and the related underlying Securities will be separately
transferable; (vii) the price at which each underlying Security purchasable upon
exercise of such Warrants may be purchased; (viii) the date on which the right
to exercise such Warrants shall commence and the date on which such right shall
expire; (ix) the minimum amount of such Warrants which may be exercised at any
one time; (x) information with respect to book-entry procedures, if any; (xi) a
discussion of any applicable federal income tax considerations; and (xii) any
other terms of such Warrants, including terms, procedures and limitations
relating to the transferability, exchange and exercise of such Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Securities in any one or more of the following
ways: (i) through one or more underwriters, (ii) through one or more dealers or
agents (which may include one or more underwriters), or (iii) directly to one or
more purchasers.
17
<PAGE>
The distribution of the Securities may be effected from time to time in one
or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. In
connection with the sale of the Securities, underwriters, dealers, and agents
may receive compensation from the Company or from purchasers of the Securities
in the form of discounts, concessions, or commissions. Underwriters, dealers,
and agents who participate in the distribution of the Securities may be deemed
to be underwriters, and any discounts or commissions received by them from the
Company and any profit on the resale of Securities by them may be deemed to be
underwriting discounts and commissions under the Securities Act. Any such
underwriter, dealer, or agent will be identified and any such compensation
received from the Company will be described in an applicable Prospectus
Supplement. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
Under agreements which may be entered into by the Company, underwriters,
dealers, and agents who participate in the distribution of the Securities may be
entitled to indemnification by the Company against certain liabilities,
including under the Securities Act, or contribution from the Company to payments
which the underwriters, dealers, or agents may be required to make in respect
thereof. The underwriters, dealers, and agents may engage in transactions with,
or perform services for, the Company in the ordinary course of business.
All Securities will be a new issue of securities with no established trading
market, other than the Common Stock, which is listed on the NYSE. Any Common
Stock sold pursuant to a Prospectus Supplement will be listed on the NYSE,
subject to official notice of issuance. Any underwriters to whom Securities are
sold by the Company for public offering and sale may make a market in such
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the secondary market for any Securities.
VALIDITY OF SECURITIES
Unless otherwise indicated in an applicable Prospectus Supplement relating
to the Securities, the validity of the Securities offered hereby will be passed
upon for the Company by Jones, Day, Reavis & Pogue, New York, New York.
EXPERTS
The consolidated financial statements of the Company as of February 1, 1997
and February 3, 1996, and for the 52 week period ended February 1, 1997, the 53
week period ended February 3, 1996, and the 52 week period ended January
28,1995, have been incorporated by reference in this Prospectus in reliance upon
the report, incorporated by reference herein, of KPMG Peat Marwick LLP,
independent certified public accountants and upon the authority of that firm as
experts in accounting and auditing.
The financial statements incorporated herein by reference to reports and
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c),
14, and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold, or
which deregisters all securities then remaining unsold, are or will be so
incorporated in reliance upon the reports of KPMG Peat Marwick LLP, or any other
independent public accountants, relating to such financial statements and upon
the authority of such independent public accountants as experts in accounting
and auditing in giving such reports to the extent that the particular firm has
audited such financial statements and consented to the use of their reports
thereon.
18
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts and commissions
(which will be described in an applicable Prospectus Supplement), are estimated
as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............... $ 303,031
Legal fees and expenses........................................... 75,000
Accounting fees and expenses...................................... 25,000
Printing and engraving expenses................................... 25,000
Trustee's fees and expenses....................................... 20,000
Miscellaneous expenses(1)......................................... 150,000
---------
Total....................................................... $ 598,031
---------
---------
</TABLE>
- ------------------------
(1) Includes estimate of stock exchange listing fees, blue sky fees and
expenses, NASD filing fees, and rating agency fees.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation (the "Certificate") provides, as
do the charters of many other publicly held companies, that the personal
liability of directors of the Company to the Company is eliminated to the
maximum extent permitted by Delaware law. The Certificate and the Company's By-
Laws provide for the indemnification of the directors, officers, employees, and
agents of the Company and its subsidiaries to the full extent that may be
permitted by Delaware law from time to time and, in the case of the By-Laws, for
various procedures relating thereto. Certain provisions of the Certificate
protect the Company's directors against personal liability for monetary damages
resulting from breaches of their fiduciary duty of care, except as set forth
below. Under Delaware law, absent these provisions, directors could be held
liable for gross negligence in the performance of their duty of care, but not
for simple negligence. The Certificate absolves directors of liability for
negligence in the performance of their duties, including gross negligence.
However, the Company's directors remain liable for breaches of their duty of
loyalty to the Company and its stockholders, as well as for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law and transactions from which a director derives improper personal benefit.
The Certificate also does not absolve directors of liability under Section 174
of the DGCL, which makes directors personally liable for unlawful dividends or
unlawful stock repurchases or redemptions in certain circumstances and expressly
sets forth a negligence standard with respect to such liability.
Under Delaware law, directors, officers, employees, and other individuals
may be indemnified against expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement in connection with specified actions,
suits, or proceedings, whether civil, criminal, administrative, or investigative
(other than an action by or in the right of the corporation -- a "derivative
action") if they acted in good faith and in a manner they reasonably believed to
be in or not opposed to the best interests of the Company and, with respect to
any criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful. A similar standard of care is applicable in the case of a
derivative action, except that indemnification only extends to expenses
(including attorneys' fees) incurred in connection with defense or settlement of
such an action and Delaware law requires court approval before there can be any
indemnification of expenses where the person seeking indemnification has been
found liable to the Company.
II-1
<PAGE>
The Certificate provides, among other things, that each person who was or is
made a party to, or is threatened to be made a party to, or is involved in, any
action, suit, or proceeding by reason of the fact that he or she is or was a
director or officer of the Company (or was serving at the request of the Company
as a director, officer, employee, or agent for another entity), will be
indemnified and held harmless by the Company to the full extent authorized by
Delaware law against all expense, liability, or loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties, and amounts to be paid in
settlement) reasonably incurred by such person in connection therewith. The
rights conferred thereby will be deemed to be contract rights and will include
the right to be paid by the Company for the expenses incurred in defending the
proceedings specified above in advance of their final disposition.
The Company's By-Laws provide for, among other things, (i) the
indemnification by the Company of its directors and officers to the extent
described above, (ii) the advancement of attorneys' fees and other expenses, and
(iii) the establishment, upon approval by the Board of Directors, of trusts or
other funding mechanisms to fund the Company's indemnification obligations.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
1.1 Underwriting Agreement (to be filed, as applicable to a particular offering of
Securities, as an exhibit to a Current Report on Form 8-K and incorporated herein
by reference thereto)
4.1 Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of the
Company's Annual Report on Form 10-K (File No. 1-13536) for the fiscal year ended
January 28, 1995 ("1994 Form 10-K"))
4.2 By-Laws (incorporated by reference to Exhibit 3.2 of the 1994 Form 10-K)
4.3 Rights Agreement, dated December 19, 1994, between the Company and the Bank of New
York, as rights agent (incorporated by reference to Exhibit 4.3 of the 1994 Form
10-K)
4.4* Indenture, dated September 10, 1997, between the Company and Citibank, N.A., as
Trustee
4.5 Supplemental Indenture (to be filed, as applicable to a particular offering of Debt
Securities, as an exhibit to a Current Report on Form 8-K and incorporated herein
by reference thereto)
4.6 The form or forms of Securities with respect to each particular series of
Securities registered hereunder will be filed as an exhibit to a Current Report on
Form 8-K and incorporated herein by reference thereto
5.1* Opinion of Jones, Day, Reavis & Pogue
12.1** Statement re: Computation of Ratios
23.1* Consent of KPMG Peat Marwick LLP
23.2* Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
24.1** Powers of Attorney
25.1* Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 on
Form T-1 of Citibank, N.A. to act as Trustee under the Indenture
</TABLE>
- ------------------------
* Filed herewith.
** Previously filed.
II-2
<PAGE>
ITEM 17. UNDERTAKINGS
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
PROVIDED, HOWEVER, that the undertakings set forth in paragraphs (i) and (ii)
above shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment will be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time will be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this Registration Statement will be
deemed to be a new Registration Statement relating to the securities offered
herein, and the offering of such securities at that time will be deemed to be
the initial bona fide offering thereof.
(5) That, (i) for purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective and (ii) for the purpose of
determining any liability under the Securities Act, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
The undersigned Registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Trust Indenture Act of 1939.
II-3
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director, officer,
or controlling person of the Company in the successful defense of any action,
suit, or proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the Company will,
unless in the opinion of counsel for the Company the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Company's Registration Statement on Form S-3 to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio on September 11, 1997.
FEDERATED DEPARTMENT STORES, INC.
/s/ DENNIS J. BRODERICK
------------------------------------------
By: Dennis J. Broderick,
SENIOR VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Company's Registration Statement on Form S-3 has been signed below
by the following persons in the capacities indicated on September 11, 1997.
SIGNATURE TITLE
- ------------------------------ ------------------------------
* Chairman of the Board and
- ------------------------------ Chief Executive
James M. Zimmerman Officer (principal executive
officer)
and Director
Vice Chairman and Chief
* Financial Officer
- ------------------------------ (principal financial
Ronald W. Tysoe officer) and Director
* Vice President and Controller
- ------------------------------ (principal accounting
Joel A. Belsky officer)
*
- ------------------------------ Director
Meyer Feldberg
*
- ------------------------------ Director
Earl G. Graves, Sr.
*
- ------------------------------ Director
George V. Grune
*
- ------------------------------ Director
Sara Levinson
*
- ------------------------------ Director
Terry J. Lundgren
*
- ------------------------------ Director
Joseph Neubauer
*
- ------------------------------ Director
Karl M. von der Heyden
*
- ------------------------------ Director
Craig E. Weatherup
*
- ------------------------------ Director
Marna C. Whittington
* The undersigned, by signing his name hereto, does sign and execute this
Amendment No. 1 to the Company's Registration Statement on Form S-3
pursuant to the Powers of Attorney executed by the above-named persons.
/s/ DENNIS J. BRODERICK
------------------------------------------
Dennis J. Broderick,
Attorney-in-Fact
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ---------- ---------------------------------------------------------------------------------------------------------
<C> <S>
1.1 Underwriting Agreement (to be filed, as applicable to a particular offering of Securities, as an exhibit
to a Current Report on Form 8-K and incorporated herein by reference thereto)
4.1 Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of the Company's Annual Report on
Form 10-K (File No. 1-13536) for the fiscal year ended January 28, 1995 ("1994 Form 10-K"))
4.2 By-Laws (incorporated by reference to Exhibit 3.2 of the 1994 Form 10-K)
4.3 Rights Agreement, dated December 19, 1994, between the Company and the Bank of New York, as rights agent
(incorporated by reference to Exhibit 4.3 of the 1994 Form 10-K)
4.4* Indenture, dated September 10, 1997, between the Company and Citibank, N.A., as Trustee
4.5 Supplemental Indenture (to be filed, as applicable to a particular offering of Debt Securities, as an
exhibit to a Current Report on Form 8-K and incorporated herein by reference thereto)
4.6 The form or forms of Securities with respect to each particular series of Securities registered hereunder
will be filed as an exhibit to a Current Report on Form 8-K and incorporated herein by reference thereto
5.1* Opinion of Jones, Day, Reavis & Pogue
12.1** Statement re: Computation of Ratios
23.1* Consent of KPMG Peat Marwick LLP
23.2* Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5.1)
24.1** Powers of Attorney
25.1* Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 on Form T-1 of Citibank,
N.A. to act as Trustee under the Indenture
</TABLE>
- ------------------------
* Filed herewith.
** Previously filed.
<PAGE>
EXHIBIT 4.4
________________________________________________________________________________
________________________________________________________________________________
Federated Department Stores, Inc.
and
Citibank, N.A., TRUSTEE
----------------------
Indenture
DATED AS OF SEPTEMBER 10, 1997
----------------------
SENIOR SECURITIES
________________________________________________________________________________
________________________________________________________________________________
<PAGE>
FEDERATED DEPARTMENT STORES, INC.
SENIOR SECURITIES
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the
Indenture of the provisions inserted pursuant to Sections 310 - 318(a),
inclusive, of the Trust Indenture Act of 1939, as amended.
TRUST INDENTURE ACT SECTIONS OF INDENTURE
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . 9.08
(a)(2) . . . . . . . . . . . . . . . . . . 9.08
(a)(3) . . . . . . . . . . . . . . . . . . Inapplicable
(a)(4) . . . . . . . . . . . . . . . . . . Inapplicable
(a)(5) . . . . . . . . . . . . . . . . . . 9.08
(b). . . . . . . . . . . . . . . . . . . . 9.07 and 9.09
(c). . . . . . . . . . . . . . . . . . . . Inapplicable
Section 311 (a). . . . . . . . . . . . . . . . . . . . 9.12
(b). . . . . . . . . . . . . . . . . . . . 9.12
(c). . . . . . . . . . . . . . . . . . . . Inapplicable
Section 312 (a). . . . . . . . . . . . . . . . . . . . 7.01 and 7.02
(b). . . . . . . . . . . . . . . . . . . . 7.02
(c). . . . . . . . . . . . . . . . . . . . 7.02
Section 313 (a). . . . . . . . . . . . . . . . . . . . 7.03
(b). . . . . . . . . . . . . . . . . . . . 7.03
(c). . . . . . . . . . . . . . . . . . . . 7.03
(d). . . . . . . . . . . . . . . . . . . . 7.03
Section 314 (a). . . . . . . . . . . . . . . . . . . . 7.04
(a). . . . . . . . . . . . . . . . . . . . (4)1.01 and 6.07
(b). . . . . . . . . . . . . . . . . . . . Inapplicable
(c)(1) . . . . . . . . . . . . . . . . . . 13.05
(c)(2) . . . . . . . . . . . . . . . . . . 13.05
(c)(3) . . . . . . . . . . . . . . . . . . Inapplicable
(d). . . . . . . . . . . . . . . . . . . . Inapplicable
(e). . . . . . . . . . . . . . . . . . . . 13.05
(f). . . . . . . . . . . . . . . . . . . . Inapplicable
Section 315 (a). . . . . . . . . . . . . . . . . . . . 9.01
(b). . . . . . . . . . . . . . . . . . . . 8.08
(c). . . . . . . . . . . . . . . . . . . . 9.01
(d). . . . . . . . . . . . . . . . . . . . 9.01
(e). . . . . . . . . . . . . . . . . . . . 8.07
Section 316 (a). . . . . . . . . . . . . . . . . . . . 1.01
(a)(1)(A). . . . . . . . . . . . . . . . . 8.01 and 8.06
(a)(1)(B). . . . . . . . . . . . . . . . . 8.01
(a)(2) . . . . . . . . . . . . . . . . . . Inapplicable
(b). . . . . . . . . . . . . . . . . . . . 8.09
(c). . . . . . . . . . . . . . . . . . . . 13.11
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . 8.02
(a)(2) . . . . . . . . . . . . . . . . . . 8.02
(b). . . . . . . . . . . . . . . . . . . . 6.03
Section 318 (a). . . . . . . . . . . . . . . . . . . . 13.08
- -----------------
* The Cross Reference Sheet is not part of the Indenture.
<PAGE>
Table of Contents*
PAGE
Recitals..................................................................1
Form of Face of Security.............................................1
Form of Reverse of Security..........................................3
Form of Trustee's Certificate Of Authentication for Securities.......7
Form of Legend for Global Securities.................................7
Article I. Definitions...................................................8
Section 1.01. Certain Terms Defined.................................8
Act.............................................................8
Affiliate.......................................................9
Authenticating Agent............................................9
Board of Directors..............................................9
Board Resolution................................................9
Business Day....................................................9
Capital Lease...................................................9
Capital Lease Obligation.......................................10
Commission.....................................................10
Common Stock...................................................10
Company........................................................10
Company Request or Company Order...............................10
Corporate Trust Office.........................................10
Covenant Defeasance............................................10
Default........................................................11
Defaulted Interest.............................................11
Defeasance.....................................................11
Defeasible Series..............................................11
Depositary.....................................................11
Event of Default...............................................11
Exchange Act...................................................11
GAAP...........................................................11
Global Security................................................12
Holder.........................................................12
Indebtedness...................................................12
Indenture......................................................13
Interest.......................................................13
Interest Payment Date..........................................13
Material Adverse Effect........................................13
_______________________
*The Table of Contents is not part of the Indenture.
<PAGE>
Maturity.......................................................13
Notice of Default..............................................13
Officer's Certificate..........................................13
Opinion of Counsel.............................................14
Original Issue Discount Security...............................14
Outstanding....................................................14
Paying Agent...................................................15
Person.........................................................15
Place of Payment...............................................15
Predecessor Security...........................................15
Redemption Date................................................15
Redemption Price...............................................15
Regular Record Date............................................16
Responsible Officer............................................16
Securities.....................................................16
Security Register and Security Registrar.......................16
Special Record Date............................................16
Stated Maturity................................................16
Subsidiary.....................................................17
Trust Indenture Act............................................17
Trustee........................................................17
U.S. Government Obligation.....................................17
Vice President.................................................18
Article II. The Securities..............................................18
Section 2.01. Designation and Amount of Securities.................18
Section 2.02. Form of Securities and Trustee's Certificate of
Authentication......................................................20
Section 2.03. Date and Denominations...............................20
Section 2.04. Execution, Authentication and Delivery of Securities.20
Section 2.05. Registration of Transfer and Exchange................22
Section 2.06. Temporary Securities.................................23
Section 2.07. Mutilated, Destroyed, Lost, and Stolen Securities....24
Section 2.08. Cancellation of Surrendered Securities...............25
Section 2.09. Payment of Interest; Interest Rights Preserved.......25
Section 2.10. Persons Deemed Owners................................26
Section 2.11. Computation of Interest..............................26
Section 2.12. CUSIP Numbers........................................26
Article III. Redemption of Securities...................................27
Section 3.01. Applicability of Article.............................27
Section 3.02. Election to Redeem; Notice to Trustee................27
Section 3.03. Deposit of Redemption Price..........................28
Section 3.04. Securities Payable on Redemption Date................28
Section 3.05. Securities Redeemed in Part..........................28
_____________________
*The Table of Contents is not part of the Indenture.
(ii)
<PAGE>
Article IV. Sinking Funds...............................................29
Section 4.01. Applicability of Article.............................29
Section 4.02. Satisfaction of Sinking Fund Payments With
Securities...........................................29
Section 4.03. Redemption of Securities for Sinking Fund............29
Article V. Defeasance and Covenant Defeasance...........................30
Section 5.01. Company's Option to Effect Defeasance or Covenant
Defeasance...........................................30
Section 5.02. Defeasance and Discharge.............................30
Section 5.03. Covenant Defeasance..................................30
Section 5.04. Conditions to Defeasance or Covenant Defeasance......31
Section 5.05. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions........33
Section 5.06. Reinstatement........................................33
Article VI. Particular Covenants of the Company.........................34
Section 6.01. Payment of Principal, Premium and Interest on
Securities...........................................34
Section 6.02. Maintenance of Office or Agency......................34
Section 6.03. Money for Securities Payments to be Held in Trust....34
Section 6.04. Payment of Taxes and Other Claims....................35
Section 6.05. Maintenance of Properties............................36
Section 6.06. Existence............................................36
Section 6.07. Compliance with Laws.................................36
Section 6.08. Statement by Officers as to Default..................36
Section 6.09. Waiver of Certain Covenants..........................37
Article VII. Securities Holders' Lists And Reports By The Company And
The Trustee...............................................37
Section 7.01. Company to Furnish Trustee Names and Addresses of
Holders..............................................37
Section 7.02. Preservation of Information; Communication to
Holders..............................................37
Section 7.03. Reports by Trustee...................................38
Section 7.04. Reports by Company...................................38
Article VIII. Default...................................................38
Section 8.01. Event of Default.....................................38
Section 8.02. Covenant of Company to Pay to Trustee Whole Amount Due
on Securities on Default in Payment of Interest or
Principal; Suits for Enforcement by Trustee..........41
Section 8.03. Application of Money Collected by Trustee............42
Section 8.04. Limitation on Suits by Holders of Securities.........42
Section 8.05. Rights and Remedies Cumulative; Delay or Omission in
Exercise of Rights not a Waiver of Event of Default..43
Section 8.06. Rights of Holders of Majority in Principal Amount of
Outstanding Securities to Direct Trustee.............43
_______________________
*The Table of Contents is not part of the Indenture.
(iii)
<PAGE>
Section 8.07. Requirement of an Undertaking to Pay Costs in Certain
Suits Under the Indenture or Against the Trustee.....44
Section 8.08. Notice of Defaults...................................44
Section 8.09. Unconditional Right of Holders to Receive Principal,
Premium, and Interest................................44
Section 8.10. Restoration of Rights and Remedies...................44
Section 8.11. Trustee May File Proofs of Claims....................45
Article IX. Concerning the Trustee......................................45
Section 9.01. Certain Duties and Responsibilities..................45
Section 9.02. Certain Rights of Trustee............................45
Section 9.03. Not Responsible for Recitals or Issuance of
Securities...........................................46
Section 9.04. May Hold Securities..................................46
Section 9.05. Money Held in Trust..................................46
Section 9.06. Compensation and Reimbursement.......................47
Section 9.07. Disqualification; Conflicting Interests..............47
Section 9.08. Corporate Trustee Required Eligibility...............47
Section 9.09. Resignation and Removal; Appointment of Successor....47
Section 9.10. Acceptance of Appointment by Successor...............49
Section 9.11. Merger, Conversion, Consolidation, or Succession to
Business.............................................50
Section 9.12. Preferential Collection of Claims Against Company....50
Section 9.13. Appointment of Authenticating Agent..................50
Section 9.14. Trustee's Application for instruction from the
Company..............................................52
Article X. Supplemental Indentures And Certain Actions..................52
Section 10.01. Purposes for Which Supplemental Indentures May Be
Entered Into Without Consent of Holders..............52
Section 10.02. Modification of Indenture With Consent of Holders of at
Least a Majority in Principal Amount of Outstanding
Securities...........................................53
Section 10.03. Execution of Supplemental Indentures.................54
Section 10.04. Effect of Supplemental Indentures....................54
Section 10.05. Conformity with Trust Indenture Act..................55
Section 10.06. Reference in Securities to Supplemental Indentures...55
Article XI. Consolidation, Merger, Sale, or Transfer....................55
Section 11.01. Consolidations and Mergers of Company and Sales
Permitted Only on Certain Terms......................55
Article XII. Satisfaction and Discharge of Indenture....................56
Section 12.01. Satisfaction and Discharge of Indenture..............56
Section 12.02. Application of Trust Money...........................56
Article XIII. Miscellaneous Provisions..................................57
Section 13.01. Successors and Assigns of Company Bound by Indenture.57
________________________
*The Table of Contents is not part of the Indenture.
(iv)
<PAGE>
Section 13.02. Service of Required Notice to Trustee and Company....57
Section 13.03. Service of Required Notice to Holders; Waiver........57
Section 13.04. Indenture and Securities to be Construed in Accordance
with the Laws of the State of New York...............58
Section 13.05. Compliance Certificates and Opinions.................58
Section 13.06. Form of Documents Delivered to Trustee...............58
Section 13.07. Payments Due on Non-Business Days....................58
Section 13.08. Provisions Required by Trust Indenture Act to
Control..............................................59
Section 13.09. Invalidity of Particular Provisions..................59
Section 13.10. Indenture May be Executed In Counterparts............59
Section 13.11. Acts of Holders; Record Dates........................59
Section 13.12. Effect of Headings and Table of Contents.............61
Section 13.13. Benefits of Indenture................................62
_____________________
*The Table of Contents is not part of the Indenture.
(v)
<PAGE>
INDENTURE, dated as of September 10, 1997, between Federated
Department Stores, Inc., a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"), and Citibank, N.A., a national
banking association, duly incorporated and existing under the laws of the
United States of America (herein called the "Trustee").
RECITALS
A. The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes, and other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in this Indenture provided.
B. The Securities of each series will be in substantially the form
set forth below, or in such other form as may be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions, and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers, or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
[Form of Face of Security]
[Insert any legend required by the Internal
Revenue Code and the regulations thereunder.]
FEDERATED DEPARTMENT STORES, INC.
__________________________
CUSIP NO._______________
No. $
Federated Department Stores, Inc., a corporation duly organized and
existing under the laws of Delaware (hereinafter called the "Company", which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to , or registered
assigns, the principal sum of $ on [IF THE
SECURITY IS TO BEAR INTEREST PRIOR TO MATURITY, INSERT: ", and to pay interest
thereon from or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, on and
in each year, commencing on _____________ , at the rate of
% per annum, until the principal hereof is paid or made available for
payment [IF APPLICABLE, INSERT: ", and at the rate of % per annum on any
overdue principal and premium and on any overdue installment of
<PAGE>
interest"]. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which will be the or (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof will be given to Holders of Securities of this series
not less than 10 calendar days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture"].
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT:
"The principal of this Security will not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption, or at Stated
Maturity, and in such case the overdue principal of this Security will bear
interest at the rate of % per annum which will accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal will be payable on demand. Any
such interest on any overdue principal that is not so paid on demand will bear
interest at the rate of % per annum which will accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest will also be payable on demand."]
Payment of the principal of (and premium, if any) and [IF APPLICABLE,
INSERT: "any such"] interest on this Security will be made at the office or
agency of the Company maintained for the purpose in , 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 [IF APPLICABLE, INSERT: ";
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 appears in the Security Register"].
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS SET FORTH ON THE
REVERSE HEREOF. SUCH PROVISIONS WILL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH IN THIS PLACE.
This Security will not be valid or become obligatory for any purpose
until the certificate of authentication herein has been signed manually by the
Trustee under the Indenture referred to on the reverse side hereof.
2
<PAGE>
In Witness Whereof, this instrument has been duly executed in
accordance with the Indenture.
Federated Department Stores, Inc.
By:_____________________________
Attest:
By:____________________
[Form of Reverse of Security]
FEDERATED DEPARTMENT STORES, INC.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of September 10, 1997 (herein called the
"Indenture"), between the Company and Citibank, N.A., as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties,
and immunities thereunder of the Company, the Trustee, and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [IF APPLICABLE, INSERT: ", limited in aggregate principal amount
to $ "].
[IF APPLICABLE, INSERT: "The Securities of this series are subject to
redemption upon not less than 30 calendar days' notice by mail,[IF APPLICABLE,
INSERT: "(a) on in each year commencing with the year
and ending with the year through operation of the sinking fund for
this series at a Redemption Price equal to 100% of the principal amount, and
(b)"] at any time [IF APPLICABLE, INSERT: "on or after , "], as
a whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed [IF
APPLICABLE, INSERT: "on or before , %, and if redeemed"]
during the 12-month period beginning of the years indicated,
3
<PAGE>
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption [IF APPLICABLE, INSERT: "whether
through operation of the sinking fund or otherwise)"] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture."]
[IF APPLICABLE, INSERT: "The Securities of this series are subject to
redemption upon not less than 30 calendar days' notice by mail,[IF APPLICABLE,
INSERT: "(a) on in each year commencing with the year
and ending with the year through operation of the sinking fund for
this series at the following Redemption Prices (expressed as percentages of the
principal amount) applicable to redemption through operation of the sinking fund
and (b)"] at any time [IF APPLICABLE, INSERT: "on or after , "],
as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount) applicable
to redemption otherwise than through operation of the sinking fund: If redeemed
[IF APPLICABLE, INSERT: "on or before , %, and if redeemed"]
during the 12-month period beginning of the years indicated,
REDEMPTION PRICE FOR REDEMPTION PRICE FOR
REDEMPTION THROUGH REDEMPTION OTHERWISE
OPERATION OF THE THAN THROUGH OPERATION
YEAR SINKING FUND OF THE SINKING FUND
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of
4
<PAGE>
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture."]
[IF APPLICABLE, INSERT: "Notwithstanding the foregoing, the Company
may not, prior to , redeem any Securities of this series as contemplated
by [IF APPLICABLE, INSERT: "Clause (b) of"] the preceding paragraph as a part
of, or in anticipation of, any refunding operation by the application, directly
or indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than % per annum."]
[IF APPLICABLE, INSERT: "The sinking fund for this series provides
for the redemption on in each year beginning with the year
and ending with the year of [IF APPLICABLE, INSERT:
"not less than $ ("mandatory sinking fund") and not more than"]
$ aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [IF APPLICABLE, INSERT: "mandatory"] sinking fund payments may be
credited against subsequent [IF APPLICABLE, INSERT: "mandatory"] sinking fund
payments otherwise required to be made [IF APPLICABLE, INSERT: "in the inverse
order in which they become due"]."]
[IF THE SECURITY IS SUBJECT TO REDEMPTION OF ANY KIND, INSERT: "In
the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof."]
[IF APPLICABLE, INSERT: "The Indenture contains provisions for
defeasance at any time of (a) the entire indebtedness evidenced by this Security
or (b) certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth in the
Indenture."]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT:
"If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture."]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT: "If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount will be equal to [INSERT FORMULA FOR DETERMINING THE
AMOUNT]. Upon payment (a) of the amount of principal so declared due and
payable and (b) of interest on any overdue principal and overdue interest, all
of the Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series will terminate."]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company
5
<PAGE>
and the rights of the Holders of the Securities of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security will be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security will not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request and shall have failed to institute such proceeding for 60 calendar
days after receipt of such notice, request, and offer of indemnity. The
foregoing will apply to any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture will alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place, and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and integral multiples thereof. As
provided in the
6
<PAGE>
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
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 of this Security for registration of
transfer, the Company, the Trustee, and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security shall be overdue, and
neither the Company, the Trustee, nor any such agent will be affected by notice
to the contrary.
All terms used in this Security that are defined in the Indenture will
have the respective meanings assigned to them in the Indenture.
C. The Trustee's certificate of authentication will be in
substantially the following form:
[Form of Trustee's Certificate Of Authentication for Securities]
Trustee's Certificate of Authentication
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Citibank, N.A.,
as Trustee
Dated:__________________ By:_______________________
Authorized Signatory
D. Every Global Security authenticated and delivered hereunder will
bear a legend in substantially the following form:
[Form of Legend for Global Securities]
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee
7
<PAGE>
thereof. This Security may not be transferred to, or registered or exchanged
for Securities registered in the name of, any Person other than the Depositary
or a nominee thereof, and no such transfer may be registered, except in the
limited circumstances described in the Indenture. Every Security authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, this Security will be a Global Security subject to the foregoing, except in
such limited circumstances.
E. All acts and things necessary to make the Securities, when the
Securities have been executed by the Company and authenticated by the Trustee
and delivered as provided in this Indenture, the valid, binding, and legal
obligations of the Company and to constitute these presents a valid indenture
and agreement according to its terms, have been done and performed, and the
execution and delivery by the Company of this Indenture and the issue hereunder
of the Securities have in all respects been duly authorized; and the Company, in
the exercise of legal right and power in it vested, is executing and delivering
this Indenture and proposes to make, execute, issue, and deliver the Securities.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
In order to declare the terms and conditions upon which the Securities
are authenticated, issued, and delivered, and in consideration of the premises
and of the purchase and acceptance of the Securities by the Holders thereof, it
is mutually agreed, for the equal and proportionate benefit of the respective
Holders from time to time of the Securities or of a series thereof, as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Certain Terms Defined
(a) The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context of this Indenture otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture that are defined in the Trust Indenture Act, either
directly or by reference therein (except as herein otherwise expressly provided
or unless the context of this Indenture otherwise requires), have the respective
meanings assigned to such terms in the Trust Indenture Act as in force at the
date of this Indenture as originally executed.
Act
The term "Act", when used with respect to any Holder, has the meaning
set forth in Section 13.11.
8
<PAGE>
Affiliate
The term "Affiliate" means, with respect to a particular Person, any
Person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. For purposes of this definition,
control of a Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative of the foregoing.
Authenticating Agent
The term "Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 9.13 to act on behalf of the Trustee to authenticate
Securities of one or more series.
Board of Directors
The term "Board of Directors" means the Board of Directors of the
Company or a duly authorized committee of such Board.
Board Resolution
The term "Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
Business Day
The term "Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday, and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or required by law or executive order to close.
Capital Lease
The term "Capital Lease" means, with respect to any Person, any lease
of property (whether real, personal, or mixed) by such Person or its
Subsidiaries as lessee that would be capitalized on a balance sheet of such
Person or its Subsidiaries prepared in conformity with GAAP, other than, in the
case of such Person or its Subsidiaries, any such lease under which such Person
or any of its Subsidiaries is the lessor.
9
<PAGE>
Capital Lease Obligation
The term "Capital Lease Obligations" means, with respect to any
Person, the capitalized amount of all obligations of such Person and its
Subsidiaries under Capital Leases, as determined on a consolidated basis in
conformity with GAAP.
Commission
The term "Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
Common Stock
The term "Common Stock" means the common stock of the Company.
Company
The term "Company" means Federated Department Stores, Inc., a Delaware
corporation, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" will mean such
successor Person.
Company Request or Company Order
The term "Company Request" or "Company Order" means a written request
or order signed in the name of the Company by the Chairman of the Board of
Directors, the Vice Chairman of the Board of Directors, the President, a Vice
President, the Treasurer, an Assistant Treasurer, the Secretary, or an Assistant
Secretary of the Company, and delivered to the Trustee.
Corporate Trust Office
"Corporate Trust Office" means the principal office of the Trustee
in the Borough of Manhattan, The City of New York, at which at any particular
time its corporate trust business shall be administered, which at the date of
initial execution of this Indenture is 120 Wall Street, 13th Floor, New York,
New York 10043, Attention: Corporate Trust Administration; except that with
respect to the presentation of Securities for payment or for registration of
transfer or exchange, such term shall mean the office or agency of the
Trustee in said Borough at which at any particular time its corporate agency
business shall be conducted, which office at the date of initial execution of
this Indenture is 111 Wall Street, 5th Floor, New York, New York 10043,
Attention: Corporate Trust Services.
Covenant Defeasance
The term "Covenant Defeasance" has the meaning set forth in Section
5.03.
10
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Default
The term "Default" means any event which, with notice or passage of
time or both, would constitute an Event of Default.
Defaulted Interest
The term "Defaulted Interest" has the meaning set forth in Section
2.09.
Defeasance
The term "Defeasance" has the meaning set forth in Section 5.02.
Defeasible Series
The term "Defeasible Series" has the meaning set forth in Section
5.01.
Depositary
The term "Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 2.01.
Event of Default
The term "Event of Default" has the meaning set forth in Section
8.01(a).
Exchange Act
The term "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, as the same may be in effect from time to time.
GAAP
The term "GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and The American
Institute of Certified Public Accountants and the statements and pronouncements
of the Financial Accounting Standards Board, or in such other statements by any
successor entity as may be in general use by significant segments of the
accounting profession, which are applicable to the circumstances as of the date
of determination.
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Global Security
The term "Global Security" means a Security that evidences all or part
of the Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depositary for such Securities or a nominee
thereof.
Holder
The term "Holder" means a person in whose name a particular Security
is registered in the Security Register.
Indebtedness
The term "Indebtedness" means, as applied to any Person, without
duplication: (a) all obligations of such Person for borrowed money; (b) all
obligations of such Person for the deferred purchase price of property or
services (other than property and services purchased, and expense accruals and
deferred compensation items arising, in the ordinary course of business); (c)
all obligations of such Person evidenced by notes, bonds, debentures,
mandatorily redeemable preferred stock, or other similar instruments (other than
performance, surety, and appeals bonds arising in the ordinary course of
business); (d) all payment obligations created or arising under any conditional
sale, deferred price, or other title retention agreement with respect to
property acquired by such Person (unless the rights and remedies of the seller
or lender under such agreement in the event of default are limited to
repossession or sale of such property); (e) any Capital Lease Obligation of such
Person; (f) all reimbursement, payment, or similar obligations, contingent or
otherwise, of such Person under acceptance, letter of credit, or similar
facilities (other than letters of credit in support of trade obligations or
incurred in connection with public liability insurance, workers' compensation,
unemployment insurance, old-age pensions, and other social security benefits
other than in respect of employee benefit plans subject to ERISA); (g) all
obligations of such Person, contingent or otherwise, under any guarantee by such
Person of the obligations of another Person of the type referred to in clauses
(a) through (f) above; and (h) all obligations referred to in clauses (a)
through (f) above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any mortgage or
security interest in property (including without limitation accounts, contract
rights, and general intangibles) owned by such Person and as to which such
Person has not assumed or become liable for the payment of such obligations
other than to the extent of the property subject to such mortgage or security
interest; PROVIDED, HOWEVER, that Indebtedness of the type referred to in
clauses (g) and (h) above shall be included within the definition of
"Indebtedness" only to the extent of the least of: (i) the amount of the
underlying Indebtedness referred to in the applicable clause (a) through (f)
above; (ii) in the case of clause (g), the limit on recoveries, if any, from
such Person under obligations of the type referred to in clause (g) above; and
(iii) in the case of clause (h), the aggregate value (as determined in good
faith by the Board of Directors) of the security for such Indebtedness.
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Indenture
The term "Indenture" means this Indenture, as this Indenture may be
amended, supplemented, or otherwise modified from time to time, including, for
all purposes of this Indenture and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" will also include the terms of particular series of Securities
established as contemplated by Section 2.01.
Interest
The term "interest," (i) when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest which accrues from and after and is payable after Maturity and (ii)
when used with respect to any Security, means the amount of all interest
accruing on such Security, including any default interest and any interest
accruing after any Event of Default that would have accrued but for the
occurrence of such Event of Default, whether or not a claim for such interest
would be otherwise allowable under applicable law.
Interest Payment Date
The term "Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
Material Adverse Effect
The term "Material Adverse Effect" means a material adverse effect on
the business, assets, financial condition or results of operations of the of the
Company (taken together with its Subsidiaries as a whole).
Maturity
The term "Maturity," when used with respect to any Security, means the
date on which the principal of that Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, or otherwise.
Notice of Default
The term "Notice of Default" means a written notice of the kind set
forth in Section 8.01(a)(iv).
Officer's Certificate
The term "Officer's Certificate" means a certificate executed on
behalf of the Company by a Responsible Officer, and delivered to the Trustee.
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Opinion of Counsel
The term "Opinion of Counsel" means an opinion in writing signed by
legal counsel, who, subject to any express provisions hereof, may be an employee
of or counsel for the Company or any Subsidiary, reasonably acceptable to the
Trustee.
Original Issue Discount Security
The term "Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 8.01(b).
Outstanding
The term "Outstanding" means, when used with reference to Securities
as of a particular time, all Securities theretofore issued by the Company and
authenticated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to the Trustee
for cancellation, (b) Securities for the payment or redemption of which money in
the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company is acting as its own Paying Agent) for the
Holders of such Securities; PROVIDED that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made, and
(c) Securities in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; PROVIDED,
HOWEVER, that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent, or waiver hereunder, (i) the
principal amount of an Original Issue Discount Security that will be deemed to
be Outstanding will be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof to such date pursuant to Section 8.01(b), (ii) the principal amount of a
Security denominated in one or more foreign currencies or currency units will be
the U.S. dollar equivalent, determined in the manner contemplated by Section
2.01 on the date of original issuance of such Security, of the principal amount
(or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in clause (i) above) of such Security, and (iii)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor will be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee will be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, or waiver, only Securities which a Responsible Officer of the
Trustee actually knows to be so owned will be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as
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Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
Paying Agent
The term "Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
Person
The term "Person" means any individual, partnership, corporation,
joint stock company, business trust, trust, unincorporated association, joint
venture, or other entity, or government or political subdivision or agency
thereof.
Place of Payment
The term "Place of Payment," when used with respect to the Securities
of any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 2.01.
Predecessor Security
The term "Predecessor Security," when used with respect to any
particular Security, means every previous Security evidencing all or a portion
of the same debt as that evidenced by such Security; and, for the purposes of
this definition, any Security authenticated and delivered under Section 2.07 in
exchange for or in lieu of a mutilated, destroyed, lost, or stolen Security will
be deemed to evidence the same debt as the mutilated, destroyed, lost, or stolen
Security.
Redemption Date
The term "Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
Redemption Price
The term "Redemption Price," when used with respect to any Security to
be redeemed, means the price (including premium, if any) at which it is to be
redeemed pursuant to this Indenture.
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Regular Record Date
The term "Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the date specified
for that purpose as contemplated by Section 2.01.
Responsible Officer
The term "Responsible Officer," when used (a) with respect to the
Company, means the Chairman, the Deputy Chairman, the Vice Chairman, the
President, a Vice President, the Treasurer, an Assistant Treasurer, the
Secretary, or an Assistant Secretary of the Company and (b) with respect to
the Trustee, means the Chairman or any Vice Chairman of the Board of
Directors, the Chairman or any Vice Chairman of the executive committee of
the Board of Directors, the Chairman of the trust committee, the President,
any Vice President, any Assistant Vice President, the Secretary, any
Assistant Secretary, the Treasurer, any Assistant Treasurer, the Cashier, any
Assistant Cashier, any Senior Trust Officer, any Trust Officer or Assistant
Trust Officer, the Controller or any Assistant Controller, or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
Securities
The term "Securities" has the meaning set forth in the first recital
of this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
Security Register and Security Registrar
The terms "Security Register" and "Security Registrar" have the
respective meanings set forth in Section 2.05.
Special Record Date
The term "Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 2.09.
Stated Maturity
The term "Stated Maturity," when used with respect to any Security,
any installment of interest thereon, or any other amount payable under this
Indenture or the Securities, means the date specified in this Indenture or such
Security as the regularly scheduled date on which the principal of such
Security, such installment of interest, or such other amount, is due and
payable.
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Subsidiary
The term "Subsidiary" means, as applied with respect to any Person,
any corporation, partnership, or other business entity of which, in the case of
a corporation, more than 50% of the issued and outstanding capital stock having
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation has or might have voting power upon the
occurrence of any contingency), or, in the case of any partnership or other
legal entity, more than 50% of the ordinary equity capital interests, is at the
time directly or indirectly owned or controlled by such Person, by such Person
and one or more of its other Subsidiaries, or by one or more of such Person's
other Subsidiaries.
Trust Indenture Act
The term "Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this instrument was executed;
PROVIDED, HOWEVER, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
Trustee
The term "Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" will mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series will mean each Trustee with respect to
Securities of that series.
U.S. Government Obligation
The term "U.S. Government Obligation" means (a) any security that is
(i) a direct obligation of the United States of America for the payment of which
full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof and (b) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended) as custodian with respect to any U.S. Government Obligation
specified in clause (a), which U.S. Government Obligation is held by such
custodian for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on any such U.S.
Government Obligation, PROVIDED that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by
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the custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
Vice President
The term "Vice President," when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president."
(b) The words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture. The words "herein", "hereof," and
"hereunder" and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section, or other subdivision. Certain terms
used principally in Articles V, VI, and IX are defined in those Articles. Terms
in the singular include the plural and terms in the plural include the singular.
ARTICLE II. THE SECURITIES
2.01. Designation and Amount of Securities
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
(b) The Securities may be issued in one or more series. There will
be established in or pursuant to a Board Resolution and, subject to Section
2.04, set forth or determined in the manner provided in an Officer's
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series: (i) the title of the Securities of
the series (which will distinguish the Securities of the series from Securities
of any other series); (ii) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in the exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.05, 2.06, 2.07, 3.05, or 10.06 and except for any
Securities which, pursuant to Section 2.04, are deemed never to have been
authenticated and delivered hereunder); (iii) the Person to whom any interest on
a Security of the series will be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest; (iv) the date or dates
on which the principal of the Securities of the series is payable; (v) the rate
or rates at which the Securities of the series will bear interest, if any, the
date or dates from which such interest will accrue, the Interest Payment Dates
on which any such interest will be payable, and the Regular Record Date for any
interest payable on any Interest Payment Date; (vi) the place or places where
the principal of and any premium and interest on Securities of the series will
be payable; (vii) the period or periods within which, the price or prices at
which, and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company; (viii) the
obligation, if any, of the Company to redeem or purchase Securities of the
series
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pursuant to any sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the price or prices at
which, and the terms and conditions upon which Securities of the series will be
redeemed or purchased, in whole or in part, pursuant to such obligation; (ix) if
other than denominations of $1,000 and integral multiples thereof, the
denominations in which Securities of the series will be issuable; (x) the
currency, currencies, or currency units in which payment of the principal of and
any premium and interest on any Securities of the series will be payable if
other than the currency of the United States of America and the manner of
determining the equivalent thereof in the currency of the United States of
America for purposes of the definition of "Outstanding" in Section 1.01; (xi) if
the amount of payments of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index, based
upon a formula, or in some other manner, the manner in which such amounts will
be determined; (xii) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies, or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election is
made will be payable, and the periods within which and the terms and conditions
upon which such election is to be made; (xiii) if other than the principal
amount thereof, the portion of the principal amount of Securities of the series
which will be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 8.01(b); (xiv) if applicable, that the Securities of the
series will be subject to either or both of Defeasance or Covenant Defeasance as
provided in Article V, provided that no series of Securities that is convertible
into Common Stock pursuant to Section 2.01(b)(xvi) or convertible into or
exchangeable for any other securities pursuant to Section 2.01(b)(xvii) will be
subject to Defeasance pursuant to Section 5.02; (xv) if and as applicable, that
the Securities of the series will be issuable in whole or in part in the form of
one or more Global Securities and, in such case, the Depositary or Depositaries
for such Global Security or Global Securities and any circumstances other than
those set forth in Section 2.05 in which any such Global Security may be
transferred to, and registered and exchanged for Securities registered in the
name of, a Person other than the Depositary for such Global Security or a
nominee thereof and in which any such transfer may be registered; (xvi) the
terms and conditions, if any, pursuant to which the Securities are convertible
into Common Stock; (xvii) the terms and conditions, if any, pursuant to which
the Securities are convertible into or exchangeable for any other securities,
including (without limitation) securities of Persons other than the Company; and
(xviii) any other terms of, or provisions, covenants, rights or other matters
applicable to, the series (which terms, provisions, covenants, rights or other
matters will not be inconsistent with the provisions of this Indenture, except
as permitted by Section 10.01(e)).
(c) All Securities of any one series will be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to below and (subject to Section 2.04) set
forth or determined in the manner provided in the Officer's Certificate referred
to above or in any such indenture supplemental hereto.
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(d) If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
will be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee concurrently with or prior to the delivery of the
Officer's Certificate setting forth the terms of the series.
2.02. Form of Securities and Trustee's Certificate of Authentication
(a) The Securities of each series will be in substantially the form
set forth in or otherwise contemplated by the recitals to this Indenture, with
appropriate variations to reflect the specific terms of such series. If the
form of Securities of any series is established by action taken pursuant to a
Board Resolution, a copy of an appropriate record of such action will be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee concurrently with or prior to the delivery of the
Company Order contemplated by Section 2.04 for the authentication and delivery
of such Securities.
(b) The definitive Securities will be printed, lithographed, or
engraved on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
(c) The Trustee's certificate of authentication will be in
substantially the form set forth in the recitals to this Indenture.
(d) Every Global Security authenticated and delivered hereunder will
bear a legend in substantially the form set forth in the recitals to this
Indenture.
2.03. Date and Denominations
Each Security will be dated the date of its authentication. The
Securities of each series will be issuable only in registered form without
coupons in such denominations as may be specified as contemplated by Section
2.01. In the absence of any such specified denomination with respect to the
Securities of any series, the Securities of such series will be issuable in
denominations of $1,000 and integral multiples thereof.
2.04. Execution, Authentication and Delivery of Securities
(a) The Securities will be executed on behalf of the Company by the
Chairman or any Vice Chairman of the Board of Directors, the Chief Executive
Officer, the President, or any Vice President of the Company and attested by the
Treasurer, the Secretary, any Assistant Treasurer, or any Assistant Secretary of
the Company under its corporate seal. The signature of any of these officers on
the Securities may be manual
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or facsimile. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted, or otherwise reproduced on the
Securities.
(b) Only such Securities bearing the Trustee's certificate of
authentication, signed manually by the Trustee, will be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such execution of
the certificate of authentication by the Trustee upon any Securities executed by
the Company will be conclusive evidence that the Securities so authenticated
have been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 2.08, for all
purposes of this Indenture such Security will be deemed never to have been
authenticated and delivered hereunder and will never be entitled to the benefits
of this Indenture.
(c) Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company will bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
(d) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order will authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 2.02, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee will be entitled to receive, and (subject to Section 9.01) will be
fully protected in relying upon, an Opinion of Counsel stating (i) if the form
of such Securities has been established by or pursuant to a Board Resolution as
permitted by Section 2.02, that such form has been established in conformity
with the provisions of this Indenture, (ii) if the terms of such Securities have
been established by or pursuant to a Board Resolution as permitted by Section
2.01, that such terms have been established in conformity with the provisions of
this Indenture, and (iii) that such Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
binding obligations of the Company enforceable in accordance with their terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other laws relating to or affecting creditors'
rights and by general principles of equity.
(e) Notwithstanding the provisions of Sections 2.01 and 2.04(d), if
all Securities of a series are not to be originally issued at one time, it will
not be necessary to deliver the Officer's Certificate otherwise required
pursuant to Section 2.01 or the
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Company Order and Opinion of Counsel otherwise required pursuant to Section
2.04(d) at or prior to the time of authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
2.05. Registration of Transfer and Exchange
(a) The Company will cause to be kept at the Corporate Trust Office a
register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company will provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
(b) Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company will execute, and the Trustee will authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of the
same series, of any authorized denominations and of a like aggregate principal
amount and tenor.
(c) At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company will execute, and the
Trustee will authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
(d) Every Security presented or surrendered for registration of
transfer or exchange will (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument or instruments of transfer,
in form reasonably satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing. No
service charge will be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 2.06, 3.05, or 10.06 not involving any transfer. The
Company will not be required (i) to issue, register the transfer of, or exchange
Securities of any series during a period beginning at the opening of business 15
calendar days before the mailing of a notice of redemption of Securities of that
series selected for redemption under Section 3.02(c) and ending at the close of
business on the day of such mailing or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except, in
the case of any Securities to be redeemed in part, the portion thereof not being
redeemed.
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(e) All Securities issued upon any registration of transfer or
exchange of Securities will be valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
(f) Notwithstanding any other provision in this Indenture, no Global
Security may be transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depositary for such Global
Security or any nominee thereof, and no such transfer may be registered, unless
(i) such Depositary (A) notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (B) ceases to be a clearing
agency registered under the Exchange Act, (ii) the Company executes and delivers
to the Trustee a Company Order that such Global Security shall be so
transferable, registrable, and exchangeable, and such transfers shall be
registrable, (iii) there shall have occurred and be continuing an Event of
Default with respect to the Securities evidenced by such Global Security, or
(iv) there shall exist such other circumstances, if any, as have been specified
for this purpose as contemplated by Section 2.01. Notwithstanding any other
provision in this Indenture, a Global Security to which the restriction set
forth in the preceding sentence shall have ceased to apply may be transferred
only to, and may be registered and exchanged for Securities registered only in
the name or names of, such Person or Persons as the Depositary for such Global
Security shall have directed and no transfer thereof other than such a transfer
may be registered. Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security to which the
restriction set forth in the first sentence of this Section 2.05(f) shall apply,
whether pursuant to this Section 2.05, Section 2.06, 2.07, 3.05, or 10.06 or
otherwise, will be authenticated and delivered in the form of, and will be, a
Global Security.
2.06. Temporary Securities
Pending the preparation of definitive Securities of any series, the
Company may execute and register and upon Company Order the Trustee will
authenticate and deliver temporary Securities (printed, lithographed, or
typewritten), of any authorized denomination, and substantially in the form of
the definitive Securities but with such omissions, insertions, and variations as
may be appropriate for temporary Securities, all as may be determined by the
officers executing such Securities as evidenced by their execution of such
Securities; PROVIDED, HOWEVER, that the Company will use reasonable efforts to
have definitive Securities of that series available at the times of any issuance
of Securities under this Indenture. Every temporary Security will be executed
and registered by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Securities. The Company will execute and register and furnish
definitive Securities of such series as soon as practicable and thereupon any or
all temporary Securities of such series may be surrendered in exchange therefor
at the office or agency of the Company in the Place of Payment for that series,
and the Trustee will authenticate and deliver in exchange for such temporary
Securities of such series one or more definitive Securities of the same series,
of any authorized denominations, and of a
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like aggregate principal amount and tenor. Such exchange will be made by the
Company at its own expense and without any charge to the Holder therefor. Until
so exchanged, the temporary Securities of any series will be entitled to the
same benefits under this Indenture as definitive Securities of the same series
authenticated and delivered hereunder.
2.07. Mutilated, Destroyed, Lost, and Stolen Securities
(a) If any mutilated Security is surrendered to the Trustee, the
Company will execute and the Trustee will authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
(b) If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss, or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company will execute and the Trustee will authenticate
and deliver, in lieu of any such destroyed, lost, or stolen Security, a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
(c) In case any such mutilated, destroyed, lost, or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
(d) Upon the issuance of any new Security under this Section 2.07,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
(e) Every new Security of any series issued pursuant to this Section
2.07 in exchange for any mutilated Security or in lieu of any destroyed, lost,
or stolen Security will constitute an original additional contractual obligation
of the Company, whether or not the mutilated, destroyed, lost, or stolen
Security shall be at any time enforceable by anyone, and will be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series duly issued hereunder.
(f) The provisions of this Section 2.07 are exclusive and will
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost, or stolen Securities.
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2.08. Cancellation of Surrendered Securities
All Securities surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any sinking fund payment will, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and will be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered will be promptly cancelled by the Trustee. No Securities will be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section 2.08, except as expressly permitted by this Indenture. The
Trustee shall destroy all cancelled Securities held by the Trustee and shall
send a certificate of such destruction to the Company.
2.09. Payment of Interest; Interest Rights Preserved
(a) Except as otherwise provided as contemplated by Section 2.01 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date will
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
(b) Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") will forthwith cease to be payable to the
Holder on the relevant regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company together with interest
thereon (to the extent permitted by law) at the rate of interest applicable to
such Security, at its election in each case, as provided in clause (i) or (ii)
below:
(i) The Company may elect to make payment of any Defaulted
Interest (and interest thereon, if any) to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which will be fixed in the following
manner. The Company will notify the Trustee in writing of the amount of
Defaulted Interest (and interest thereon, if any) proposed to be paid on
each Security of such series and the date of the proposed payment, and at
the same time the Company will deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest (and interest thereon, if any) or will make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the persons entitled to such Defaulted Interest (and interest
thereon, if any) as in this clause (i) provided. Thereupon the Trustee
will fix a Special Record Date for the payment of such Defaulted Interest
(and interest thereon, if any) which
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will be not more than 15 calendar days and not less than 10 calendar days
prior to the date of the proposed payment and not less than 10 calendar
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee will promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, will cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at his address as it appears in the
Security Register, not less than 10 calendar days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
(and interest thereon, if any) and the Special Record Date therefor having
been so mailed, such Defaulted Interest will be paid to the Persons in
whose names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and will no longer be payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted Interest (and
interest thereon, if any) on the Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause (ii), such
manner of payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section 2.09, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security will carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
2.10. Persons Deemed Owners
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee, and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 2.09) any interest on such Security and for all other
purposes whatsoever, whether or not such Security shall be overdue, and neither
the Company, the Trustees nor any agent of the Company or the Trustee will be
affected by notice to the contrary.
2.11. Computation of Interest
Except as otherwise specified as contemplated by Section 2.01 for
Securities of any series, interest on the Securities of each series will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
2.12. CUSIP Numbers
The Company in issuing any series of the Securities may use CUSIP
numbers, if then generally in use, and thereafter with respect to such
series, the Trustee may use such numbers in any notice of redemption or
exchange with respect to such series provided that any such notice may state
that no representation is made as to the correctness of such numbers either
as printed on the Securities or as contained in any notice of a redemption
and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
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ARTICLE III. REDEMPTION OF SECURITIES
3.01. Applicability of Article
Securities of any series which are redeemable before their Stated
Maturity will be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 2.01 for Securities of any
series) in accordance with this Article III.
3.02. Election to Redeem; Notice to Trustee
(a) The election of the Company to redeem any Securities will be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company will, at
least 60 calendar days prior to the Redemption Date fixed by the Company (unless
a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company will furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction.
(b) Notice of redemption of Securities to be redeemed at the election
of the Company will be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and will be irrevocable.
Notice of redemption will be given by mail, first-class postage prepaid, not
less than 30 or more than 60 calendar days prior to the Redemption Date, to each
Holder of Securities to be redeemed, at his address appearing in the Security
Register. All notices of redemption will state (i) the Redemption Date,
(ii) the Redemption Price, (iii) if less than all the Outstanding Securities of
any series are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed, (iv) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,
(v) the place or places where such Securities are to be surrendered for payment
of the Redemption Price, (vi) that the redemption is for a sinking fund, if such
is the case, and (vii) the specific provision of this Indenture pursuant to
which such Securities are to be redeemed.
(c) If less than all the Securities of any series are to be redeemed,
the particular Securities to be redeemed will be selected not more than 60
calendar days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee may deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that
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series. The Trustee will promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
(d) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities will relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
3.03. Deposit of Redemption Price
Prior to 10:00 a.m. on any Redemption Date specified in the notice
of redemption given as provided in Section 3.02, the Company will deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 6.03) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on,
all of the Securities that are to be redeemed on that date.
3.04. Securities Payable on Redemption Date
(a) Notice of redemption having been given as aforesaid, the
Securities so to be redeemed will, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company defaults in the payment of the Redemption Price and accrued
interest) such Securities will cease to accrue interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security will
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that, unless otherwise specified as
contemplated by Section 2.01, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates in accordance with their terms
and the provisions of Section 2.09.
(b) If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium will, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
3.05. Securities Redeemed in Part
Any Security that is to be redeemed only in part will be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company will execute, and the Trustee will
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and of like tenor, of any
authorized denomination as requested by such
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Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE IV. SINKING FUNDS
4.01. Applicability of Article
The provisions of this Article IV will be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 2.01 for Securities of such series. The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any series is herein referred to as a "mandatory sinking fund payment," and any
payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking fund payment." If
provided for by the terms of Securities of any series, the amount of any sinking
fund payment may be subject to reduction as provided in Section 4.02. Each
sinking fund payment with respect to Securities of a particular series will be
applied to the redemption of Securities of such series as provided for by the
terms of Securities of such series.
4.02. Satisfaction of Sinking Fund Payments With Securities
The Company (a) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (b) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, provided that such Securities have not been previously so credited.
Such Securities will be received and credited for such purpose by the Trustee at
the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment will
be reduced accordingly.
4.03. Redemption of Securities for Sinking Fund
Not less than 60 calendar days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officer's Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, that is to be satisfied by payment of cash and the portion
thereof, if any, that is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 4.02 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 calendar days before each such
sinking fund payment date, the Trustee will select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 3.02(c)
and cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 3.02(b). Such notice
having been duly
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given, the redemption of such Securities will be made upon the terms and in the
manner stated in Sections 3.04 and 3.05.
ARTICLE V. DEFEASANCE AND COVENANT DEFEASANCE
5.01. Company's Option to Effect Defeasance or Covenant Defeasance
The Company may elect, at its option by Board Resolution at any time,
to have either Section 5.02 or Section 5.03 applied to the Outstanding
Securities of any series designated pursuant to Section 2.01 as being defeasible
pursuant to this Article V (hereinafter called "Defeasible Series"), upon
compliance with the conditions set forth below in this Article V, PROVIDED that
Section 5.02 will not apply to any series of Securities that is convertible into
Common Stock pursuant to Section 2.01(b)(xvi) or convertible into or
exchangeable for any other securities pursuant to Section 2.01(b)(xvii).
5.02. Defeasance and Discharge
Upon the Company's exercise of the option provided in Section 5.01 to
have this Section 5.02 applied to the Outstanding Securities of any Defeasible
Series and subject to the proviso to Section 5.01, the Company will be deemed to
have been discharged from its obligations with respect to the Outstanding
Securities of such series as provided in this Section 5.02 on and after the date
the conditions set forth in Section 5.04 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company will be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities of such series and to have satisfied all its other
obligations under the Securities of such series and this Indenture insofar as
the Securities of such series are concerned (and the Trustee, at the expense of
the Company, will execute proper instruments acknowledging the same), subject to
the following which will survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of Securities of such series to receive,
solely from the trust fund described in Section 5.04 and as more fully set forth
in Section 5.04, payments in respect of the principal of and any premium and
interest on such Securities of such series when payments are due, (b) the
Company's obligations with respect to the Securities of such series under
Sections 2.05, 2.06, 2.07, 6.02, 6.03, and 10.06, (c) the rights, powers,
trusts, duties, and immunities of the Trustee hereunder, and (d) this Article V.
Subject to compliance with this Article V, the Company may exercise its option
provided in Section 5.01 to have this Section 5.02 applied to the Outstanding
Securities of any Defeasible Series notwithstanding the prior exercise of its
option provided in Section 5.01 to have Section 5.03 applied to the Outstanding
Securities of such series.
5.03. Covenant Defeasance
Upon the Company's exercise of the option provided in Section 5.01 to
have this Section 5.03 applied to the Outstanding Securities of any Defeasible
Series, (a) the Company will be released from its obligations under Sections
6.04 through 6.07,
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inclusive, Section 11.01, and the provisions of any Supplemental Indenture
specified in such Supplemental Indenture, and (b) the occurrence of any event
specified in Sections 8.01(a)(iii), 8.01(a)(iv) (with respect to any of Sections
6.04 through 6.07, inclusive, Section 11.01, and the provisions of any
Supplemental Indenture specified in such Supplemental Indenture), 8.01(a)(v),
and 8.01(a)(viii) will be deemed not to be or result in an Event of Default, in
each case with respect to the Outstanding Securities of such series as provided
in this Section on and after the date the conditions set forth in Section 5.04
are satisfied (hereinafter called "Covenant Defeasance"). For this purpose,
such Covenant Defeasance means that the Company may omit to comply with and will
have no liability in respect of any term, condition, or limitation set forth in
any such specified Section (to the extent so specified in the case of Section
8.01(a)(iv)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and the Securities of such series will be unaffected
thereby.
5.04. Conditions to Defeasance or Covenant Defeasance
The following will be the conditions to application of either Section
5.02 or Section 5.03 to the Outstanding Securities of any Defeasible Series:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 9.08 and agrees to comply with the
provisions of this Article V applicable to it) as trust funds in trust for
the benefit of the Holders of Outstanding Securities of such series (i)
money in an amount, or (ii) U.S. Government Obligations that through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, without reinvestment, not later
than one day before the due date of any payment, money in an amount, or
(iii) a combination thereof, in each case sufficient to pay and discharge,
and which will be applied by the Trustee (or any such other qualifying
trustee) to pay and discharge, the principal of and any premium and
interest on the Securities of such series on the respective Stated
Maturities or on any earlier date or dates on which the Securities of such
series shall be subject to redemption and the Company shall have given the
Trustee irrevocable instructions satisfactory to the Trustee to give notice
to the Holders of the redemption of the Securities of such series, all in
accordance with the terms of this Indenture and the Securities of such
series.
(b) In the case of an election under Section 5.02, the Company shall
have delivered to the Trustee an Opinion of Counsel (from a counsel who
shall not be an employee of the Company) to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of this Indenture there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon, such opinion shall confirm that, the
Holders of the Outstanding
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Securities of such series will not recognize gain or loss for federal
income tax purposes as a result of the deposit, Defeasance, and discharge
to be effected with respect to the Securities of such series and will be
subject to federal income tax on the same amount, in the same manner, and
at the same times as would be the case if such deposit, Defeasance, and
discharge were not to occur.
(c) In the case of an election under Section 5.03, the Company shall
have delivered to the Trustee an Opinion of Counsel (from a counsel who
shall not be an employee of the Company) to the effect that the Holders of
the Outstanding Securities of such series will not recognize gain or loss
for federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to the Securities of such series and
will be subject to federal income tax on the same amount, in the same
manner, and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted solely as a result
of such deposit.
(e) No Event of Default or event that (after notice or lapse of time
or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of
Default or any such event specified in Sections 8.01(a)(vi) and (vii), at
any time on or prior to the 90th calendar day after the date of such
deposit (it being understood that this condition will not be deemed
satisfied until after such 90th calendar day).
(f) Such Defeasance or Covenant Defeasance will not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such
Act).
(g) Such Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(h) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
(i) Such Defeasance or Covenant Defeasance will not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such
trust will be qualified under such Act or exempt from regulation
thereunder.
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5.05. Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions
(a) Subject to the provisions of Section 6.03(e), all money and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section 5.05
and Section 5.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 5.04 in respect of the
Securities of any Defeasible Series will be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
(b) The Company will pay and indemnify the Trustee against any tax,
fee, or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 5.04 or the principal and interest
received in respect thereof other than any such tax, fee, or other charge that
by law is for the account of the Holders of Outstanding Securities.
(c) Notwithstanding anything in this Article V to the contrary, the
Trustee will deliver or pay to the Company from time to time upon a Company
Request any money or U.S. Government Obligations held by it as provided in
Section 5.04 with respect to Securities of any Defeasible Series that are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the
Securities of such series.
5.06. Reinstatement
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article V with respect to the Securities of any series by
reason of any order or judgment of any court or governmental authority
enjoining, restraining, or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
will be revived and reinstated as though no deposit had occurred pursuant to
this Article V with respect to Securities of such series until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant
to Section 5.05 with respect to Securities of such series in accordance with
this Article V; PROVIDED, HOWEVER, that if the Company makes any payment of
principal of or any premium or interest on any Security of such series following
the reinstatement of its obligations, the Company will be subrogated to the
rights of the Holders of Securities of such series to receive such payment from
the money so held in trust.
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ARTICLE VI. PARTICULAR COVENANTS OF THE COMPANY
6.01. Payment of Principal, Premium and Interest on Securities
The Company, for the benefit of each series of Securities, will duly
and punctually pay the principal of and any premium and interest on the
Securities of that series in accordance with the terms of the Securities and
this Indenture.
6.02. Maintenance of Office or Agency
(a) The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices, and demands may be made or served at
the Corporate Trust Office, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices, and demands.
(b) The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission will in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such
other office or agency.
6.03. Money for Securities Payments to be Held in Trust
(a) If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
(b) Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and
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(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
(c) The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent will agree with the Trustee, subject to
the provisions of this Section 6.03, that such Paying Agent will (i) comply with
the provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
(d) The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent will be released from all further liability with respect to
such money.
(e) Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or any premium
or interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, or interest has become due and payable will be
paid to the Company upon a Company Request (or, if then held by the Company,
will be discharged from such trust); and the Holder of such Security will
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, will thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which will not
be less than 30 calendar days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
6.04. Payment of Taxes and Other Claims
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments, and
governmental charges levied or imposed upon the Company or any Subsidiary of the
Company or upon the income, profits, or property of the Company or any
Subsidiary of the Company, and (b) all lawful claims for labor, materials, and
supplies, in each case which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary of the
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Company and might have a Material Adverse Effect; PROVIDED, HOWEVER, that the
Company will not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge, or claim the amount, applicability,
or validity of which is being contested in good faith by appropriate
proceedings.
6.05. Maintenance of Properties
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary of the Company to be maintained
and kept in good condition, repair, and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments, and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section 6.05 will prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary of the Company and will not
result in a Material Adverse Effect.
6.06. Existence
Subject to Article XI, the Company will, and will cause each of its
Subsidiaries to, do or cause to be done all things necessary to preserve and
keep in full force and effect its existence, rights (charter and statutory), and
franchises; PROVIDED, HOWEVER, that neither the Company nor any Subsidiary will
be required to preserve any such right or franchise if the Board of Directors
determines that the preservation thereof is no longer desirable in the conduct
of the business of the Company and that the loss thereof will not result in a
Material Adverse Effect.
6.07. Compliance with Laws
The Company will, and will cause each of its Subsidiaries to, comply
with all applicable federal, state, local, or foreign laws, rules, regulations,
or ordinances, including without limitation such laws, rules, regulations, or
ordinances relating to pension, environmental, employee, and tax matters, in
each case to the extent that the failure so to comply would have a Material
Adverse Effect.
6.08. Statement by Officers as to Default
The Company will deliver to the Trustee, within 120 calendar days
after the end of each fiscal year of the Company ending after the date hereof,
an Officer's Certificate signed by the principal executive officer, principal
financial officer, or principal accounting officer of the Company stating
whether or not to the knowledge of such person after due inquiry the Company is
in default in the performance and observance of any of the terms, provisions,
and conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the
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Company is in default, specifying all such defaults and the nature and status
thereof of which such person may have such knowledge.
6.09. Waiver of Certain Covenants
The Company may omit in any particular instance to comply with any
term, provision, or condition set forth in Sections 6.04 through 6.07,
inclusive, and the provisions of any Supplemental Indenture specified in such
Supplemental Indenture, with respect to the Securities of any series if the
Holders of a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision, or condition,
but no such waiver will extend to or affect such term, provision, or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision, or condition will remain in full force and
effect.
ARTICLE VII. SECURITIES HOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
7.01. Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the Trustee (a)
semi-annually, not more than 15 calendar days after the applicable Regular
Record Date, a list for each series of Securities, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Securities
of such series as of such Regular Record Date and (b) at such other times as the
Trustee may request in writing, within 30 calendar days after the receipt by the
Company of any such request, a list of similar form and content as of a date not
more than 15 calendar days prior to the time such list is furnished; EXCLUDING
from any such list names and addresses received by the Trustee in its capacity
as Security Registrar.
7.02. Preservation of Information; Communication to Holders
(a) The Trustee will preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, will be as provided by the
Trust Indenture Act.
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(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them will be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
7.03. Reports by Trustee
The Trustee will transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto. A copy of each such report will, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission, and with the Company. The
Company will promptly notify the Trustee when any Securities are listed on
any stock exchange or any delisting thereof.
7.04. Reports by Company
The Company will file with the Trustee and the Commission, and
transmit to Holders, such information, documents, and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; PROVIDED that any such
information, documents, or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act will be filed with the
Trustee within 15 calendar days after the same is so required to be filed with
the Commission.
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall
not constitute constructive notice of any information contained therein,
including the Company's compliance with any of its covenants hereunder (as to
which the Trustee is entitled to conclusively rely exclusively on Officers'
Certificates).
ARTICLE VIII. DEFAULT
8.01. Event of Default
(a) "Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it may be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree, or order
of any court or any order, rule, or regulation of any administrative or
governmental body):
(i) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 calendar days;
(ii) default in the payment of the principal of (or premium,
if any, on) any Security of that series when it becomes due and payable;
(iii) default in the making of any sinking fund payment when
and as due by the terms of a Security of that series;
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(iv) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty, a default in the performance or breach of which is elsewhere in
this Section 8.01 specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more series of
Securities other than that series), and continuance of such default or
breach for a period of 60 calendar days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder;
(v) any nonpayment at maturity or other default is made under
any agreement or instrument relating to any other Indebtedness of the
Company (the unpaid principal amount of which is not less than $100.0
million), and, in any such case, such default (A) continues beyond any
period of grace provided with respect thereto and (B) results in such
Indebtedness becoming due prior to its stated maturity or occurs at the
final maturity of such Indebtedness; PROVIDED, HOWEVER, that, subject to
the provisions of Section 9.01 and 8.08, the Trustee will not be deemed to
have knowledge of such nonpayment or other default unless either (1) a
Responsible Officer of the Trustee has actual knowledge of nonpayment or
other default or (2) the Trustee has received written notice thereof from
the Company, from any Holder, from the holder of any such Indebtedness or
from the trustee under the agreement or instrument relating to such
Indebtedness;
(vi) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization, or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement,
adjustment, or composition of or in respect of the Company under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator, or other similar official of
the Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and
in effect for a period of 60 consecutive calendar days;
(vii) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization, or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization, or other similar law or to the commencement of
any bankruptcy or insolvency case
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or proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief with respect to the Company under
any applicable federal or state bankruptcy, insolvency, reorganization, or
other similar law, or the consent by it to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator, or other similar official of
the Company or of any substantial part of its property pursuant to any such
law, or the making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(viii) any other Event of Default provided with respect to
Securities of that series.
(b) If an Event of Default (other than an Event of Default arising
under Section 8.01(a)(vi) or (vii)) with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) will become immediately due and payable. If an Event of Default under
Section 8.01(a)(vi) or (vii) occurs, then the principal of, premium, if any, and
accrued interest on the Securities shall become immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
(c) At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article VIII provided, the Holders of a majority in principal amount of the
outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if (i) the
Company has paid or deposited with the Trustee a sum sufficient to pay (A) all
overdue interest on all Securities of that series, (B) the principal of (and
premium, if any, on) any Securities of that series which have become due
otherwise than by such declaration of acceleration and any interest thereon at
the rate or rates prescribed therefor in such Securities, (C) to the extent that
payment of such interest is lawful, interest upon overdue interest at the rate
or rates prescribed therefor in such Securities, and (D) all sums paid or
advanced by the Trustee hereunder and the reasonable compensation, expenses,
disbursements, and advances of the Trustee and its agents and counsel and (ii)
all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 8.01(d). No such rescission will affect any subsequent
default or impair any right consequent thereon.
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(d) The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to such series and its
consequences, except a default (i) in the payment of the principal of or any
premium or interest on any Security of such series or (ii) in respect of a
covenant or provision hereof which under Article X cannot be modified or amended
without the consent of the Holder of each Outstanding Security of such series
affected. Upon any such waiver, such default will cease to exist, and any Event
of Default arising therefrom will be deemed to have been cured, for every
purpose of this Indenture, but no such waiver will extend to any subsequent or
other default or impair any right consequent thereon.
8.02. Covenant of Company to Pay to Trustee Whole Amount Due on Securities
on Default in Payment of Interest or Principal; Suits for Enforcement
by Trustee
(a) The Company covenants that if (i) default is made in the payment
of any interest on any Security when such interest becomes due and payable and
such default continues for a period of 30 calendar days or (ii) default is made
in the payment of the principal of (or premium, if any, on) any Security when it
becomes due and payable, the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal and any premium and interest and,
to the extent that payment of such interest will be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at
the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as will be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements, and advances of the Trustee and its agents and counsel.
(b) If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
(c) In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors, the
Trustee will be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee will be authorized to collect and
receive any money or other property payable or deliverable on any such claims
and to distribute the same, and any custodian, receiver, assignee, trustee,
liquidator, sequestrator, or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee consents to the making of such
payments directly to the Holders,
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to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements, and advances of the Trustee and its agents and counsel,
and any other amounts due the Trustee under Section 9.06.
(d) No provision of this Indenture will be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment, or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding; PROVIDED,
HOWEVER, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
(e) All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee will be brought in
its own name as trustee of an express trust, and any recovery of judgment will,
after provision for the payment of the reasonable compensation, expenses,
disbursements, and advances of the Trustee and its agents and counsel, be for
the ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
8.03. Application of Money Collected by Trustee
Any money collected by the Trustee pursuant to this Article VIII will
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 9.06;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the
Securities in respect of which or for the benefit of
which such money has been collected, ratably, without
preference or priority of any kind, according to the
amounts due and payable on such Securities for principal
and any premium and interest, respectively; and
THIRD: To the Company.
8.04. Limitation on Suits by Holders of Securities
No Holder of any Security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless (a) such Holder has previously given written notice to the
Trustee of a continuing Event of
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Default with respect to the Securities of that series, (b) the Holders of not
less than 25% in principal amount of the Outstanding Securities of that series
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder, (c) such
Holder or Holders have offered to the Trustee reasonable indemnity against the
costs, expenses, and liabilities to be incurred in compliance with such request,
(d) the Trustee for 60 calendar days after its receipt of such notice, request,
and offer of indemnity has failed to institute any such proceeding, and (e) no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of
the Outstanding Securities of that series, it being understood and intended that
no one or more of such Holders will have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to affect,
disturb, or prejudice the rights of any other of such Holders, or to obtain or
to seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all of such Holders.
8.05. Rights and Remedies Cumulative; Delay or Omission in Exercise of
Rights not a Waiver of Event of Default
(a) Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost, or stolen Securities in the last
paragraph of Section 2.07, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy will, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, will not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
(b) No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
will impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article VIII or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
8.06. Rights of Holders of Majority in Principal Amount of Outstanding
Securities to Direct Trustee
The Holders of a majority in principal amount of the Outstanding
Securities of any series will have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, PROVIDED that (a) such direction will not be in
conflict with any rule of law or with this Indenture and (b) the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
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8.07. Requirement of an Undertaking to Pay Costs in Certain Suits Under the
Indenture or Against the Trustee
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered, or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; PROVIDED that neither this Section 8.07 nor the Trust Indenture
Act will be deemed to authorize any court to require such an undertaking or to
make such an assessment in any suit instituted by the Company.
8.08. Notice of Defaults
If a Default occurs hereunder with respect to Securities of any
series, the Trustee will give the Holders of Securities of such series notice of
such Default as and to the extent provided by the Trust Indenture Act; PROVIDED,
HOWEVER, that in the case of any Default of the character specified in Section
8.01(a)(iv) with respect to Securities of such series no such notice to Holders
will be given until at least 30 calendar days after the occurrence thereof. The
Company will give the Trustee notice of any uncured Event of Default within 10
days after any Responsible Officer of the Company becomes aware of or receives
actual notice of such Event of Default.
8.09. Unconditional Right of Holders to Receive Principal, Premium, and
Interest
Notwithstanding any other provision in this Indenture, the Holder of
any Security will have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section
2.09) interest on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights may not
be impaired without the consent of such Holder.
8.10. Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee, and the Holders will
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders will continue
as though no such proceeding had been instituted.
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8.11. Trustee May File Proofs of Claims
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements, and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceeding relative to the Company or the
Subsidiaries (or any other obligor upon the Securities), their creditors or
their property and shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claim and to
distribute the same, and any custodian in any such judicial proceedings is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements, and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee hereunder. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
ARTICLE IX. CONCERNING THE TRUSTEE
9.01. Certain Duties and Responsibilities
The duties and responsibilities of the Trustee will be as provided
by the Trust Indenture Act. Notwithstanding the foregoing, no provision of
this Indenture will require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers. Whether
or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee will be subject to the provisions of this Section 9.01.
9.02. Certain Rights of Trustee
Subject to the provisions of Section 9.01: (a) the Trustee may
conclusively rely and will be protected in acting or refraining from acting
upon, whether in its original or facsimile form, any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness, or other paper
or document believed by it to be genuine and to have been signed or presented
by the proper party or parties; (b) any request or direction of the Company
mentioned herein will be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board will be sufficiently evidenced
by a Board Resolution; (c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering, or omitting any action hereunder, the Trustee
(unless other
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evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officer's Certificate; (d) the Trustee may consult
with counsel of its selection and the advice of such counsel or any Opinion
of Counsel will be full and complete authorization and protection in respect
of any action taken, suffered, or omitted by it hereunder in good faith and
in reliance thereon; (e) the Trustee will be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses, and liabilities which might be incurred by it in
compliance with such request or direction; (f) the Trustee will not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it will be entitled to examine the books, records,
and premises of the Company, personally or by agent or attorney at the sole
reasonable cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation; (g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
will not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and (h) the Trustee
shall not be liable for any action taken, suffered, or omitted to be taken by
it in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
9.03. Not Responsible for Recitals or Issuance of Securities
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, may be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent will not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
9.04. May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar, or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
9.07 and 9.12, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar, or such other agent.
9.05. Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required herein or by law. The Trustee
will be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
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9.06. Compensation and Reimbursement
The Company will (a) pay to the Trustee from time to time such
compensation for all services rendered by it hereunder as the parties shall
agree from time to time (which compensation will not be limited to any
provision of law in regard to the compensation of a trustee of an express
trust); (b) except as otherwise expressly provided herein, reimburse the
Trustee upon its request for all reasonable expenses, disbursements, and
advances incurred or made by the Trustee in accordance with provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of agents and counsel), except any such expense, disbursement,
or advance as may be attributable to its negligence or bad faith; and (c)
indemnify each of the Trustee and any predecessor Trustee for, and hold the
Trustee harmless against, any and all loss, liability, claim, or expense
incurred without negligence or bad faith on its part arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 8.01(a)(vi) or Section
8.01(a)(vii), the expenses (including the reasonable charges and expenses of
its counsel) and the compensation for such services are intended to
constitute expenses of administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.
9.07. Disqualification; Conflicting Interests
If the Trustee has or acquires a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee will either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
9.08. Corporate Trustee Required Eligibility
There will at all times be one or more Trustees hereunder with respect
to the Securities of each series, at least one of which will be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $100,000,000 and its Corporate Trust Office or
principal office in New York City, or any other major city in the United States
that is acceptable to the Company. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of a
supervising or examining state or federal authority, then for the purposes of
this Section 9.08, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 9.08, it will resign
immediately in the manner and with the effect hereinafter specified in this
Article IX.
9.09. Resignation and Removal; Appointment of Successor
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article IX will become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 9.10.
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(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 9.10 shall not have been delivered to the Trustee within 30 calendar
days after the giving of such notice of resignation, the resigning Trustee
may at the reasonable expense of the Company petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If, at any time, (i) the Trustee fails to comply with Section
9.07 after written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, (ii) the Trustee
ceases to be eligible under Section 9.08 and fails to resign after written
request therefor by the Company or by any such Holder, or (iii) the Trustee
becomes incapable of acting or is adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property is appointed or any public officer takes
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation, or liquidation, then, in any such case, (A) the
Company by a Board Resolution may remove the Trustee with respect to all
Securities or (B) subject to Section 8.07, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee resigns, is removed, or becomes incapable of
acting, or if a vacancy occurs in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company by a Board
Resolution will promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there will be only one
Trustee with respect to the Securities of any particular series) and will
comply with the applicable requirements of Section 9.10. If, within one year
after such resignation, removal, or incapability or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series is
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed will, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 9.10, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed
by the Company. If no successor Trustee with respect to the Securities of
any series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 9.10, any Holder who
has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, at the
reasonable expense of the Company, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of
such series.
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(f) The Company will give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
holders of Securities of such series in the manner provided in Section 13.03.
Each notice will include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
9.10. Acceptance of Appointment by Successor
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed will
execute, acknowledge, and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee will become effective and such successor Trustee,
without any further act, deed, or conveyance, will become vested with all the
rights, powers, trusts, and duties of the retiring Trustee, but, on the request
of the Company or the successor Trustee, such retiring Trustee will, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers, and duties of the retiring Trustee and
will duly assign, transfer, and deliver to such Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee, and each successor Trustee with respect to the Securities of
one or more series will execute and deliver an indenture supplemental hereto
wherein such successor Trustee will accept such appointment and which (i) will
contain such provisions as may be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers, trusts, and
duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (ii) if the
retiring Trustee is not retiring with respect to all Securities, will contain
such provisions as may be deemed necessary or desirable to confirm that all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring will continue to be vested in the retiring Trustee, and (iii) will add
to or change any of the provisions of this Indenture as may be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture will constitute such Trustees co-trustees of the same
trust and that each such Trustee will be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustees and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee will become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed, or conveyance, will become vested with all the rights, powers,
trusts, and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates;
but on request of the Company or any successor Trustee, such retiring Trustee
will duly assign, transfer, and deliver to such successor Trustee all property
and money
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held by such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company will
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all applicable rights, powers, and trusts
referred to in the preceding paragraphs of this Section 9.10.
(d) No successor Trustee will accept its appointment unless at the
time of such acceptance such successor Trustee is qualified and eligible under
this Article IX.
9.11. Merger, Conversion, Consolidation, or Succession to Business
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion, or consolidation to which the Trustee may be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, will be the successor of the Trustee hereunder, provided such
corporation is otherwise qualified and eligible under this Article IX, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion, or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
9.12. Preferential Collection of Claims Against Company
If and when the Trustee is or becomes a creditor of the Company (or
any other obligor upon the Securities), the Trustee will be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
9.13. Appointment of Authenticating Agent
(a) The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which will be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer, or partial
redemption thereof or pursuant to Section 2.07, and Securities so authenticated
will be entitled to the benefits of this Indenture and will be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference will be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to
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the Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any state thereof, or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section 9.13, the combined capital and surplus of such
Authenticating Agent will be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 9.13, such Authenticating Agent will resign
immediately in the manner and with the effect specified in this Section 9.13.
(b) Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion, or consolidation to which such Authenticating Agent
may be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, will continue to be an
Authenticating Agent, provided such corporation is otherwise eligible under this
Section 9.13, without the execution or filing of any paper or any further act on
the part of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions this Section 9.13, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and will mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder will
become vested with all the rights, powers, and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent will be appointed unless eligible under the
provisions of this Section 9.13.
(d) The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section 9.13.
(e) If an appointment with respect to one or more series of
Securities is made pursuant to this Section 9.13, the Securities of such series
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative form of certificate of authentication in the
following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Citibank, N.A., as Trustee
Dated:_____________________ By:____________________________
As Authenticating Agent
By:____________________________
Authorized Signatory
Section 9.14 Trustee's Application for instruction from the Company.
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the
date on and/or after which such action shall be taken or such omission shall
be effective. In the case of any proposed action or omission expressly
authorized by this Indenture, the Trustee shall not be liable for any action
taken by, or omission of, the Trustee in accordance with a proposal included
in such application on or after the date specified in such application (which
date shall not be less than three Business Days after the date any officer of
the Company actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to taking any
such action (or the effective date in the case of an omission), the Trustee
shall have received written instructions in response to such application
specifying the action to be taken or omitted. In the case of any proposed
action or omission that is not expressly authorized by this Indenture, the
Trustee shall not take or refrain from taking any action unless prior to
taking or refraining from taking any such action, the Trustee shall have
received written instructions in response to such application specifying the
action to be taken or omitted.
ARTICLE X. SUPPLEMENTAL INDENTURES AND CERTAIN ACTIONS
10.01. Purposes for Which Supplemental Indentures May Be Entered Into Without
Consent of Holders
Without the consent of or notice to any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities, all to the extent otherwise permitted hereunder;
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(c) to add any additional Events of Default;
(d) to add to or change any of the provisions of this Indenture to
such extent as may be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form;
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(e) to add to, change, or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, PROVIDED that any
such addition, change, or elimination (i) will neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) will become effective only when there is no such Security Outstanding;
(f) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.02;
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as may be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 9.10; or
(h) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, PROVIDED that such action pursuant
to this clause (h) will not adversely affect the interests of the Holders
of Securities of any series in any material respect.
10.02. Modification of Indenture With Consent of Holders of at Least a
Majority in Principal Amount of Outstanding Securities
(a) With the consent of the Holders of a majority in principal amount
of the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture will, without the consent of the Holder of each
Outstanding Security affected thereby:
(i) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Sections
8.01(b), or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any
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such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date);
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of the Holders of which is required
for any such supplemental indenture, or the consent of the Holders of which
is required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture; or
(iii) modify any of the provisions of this Section 10.02, Section
8.01(d) or Section 6.09, except to increase the percentage in principal
amount of Holders required under any such Section or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, PROVIDED, HOWEVER, that this clause (c) will not be deemed to
require the consent of any Holder with respect to changes in the references
to "the Trustee" and concomitant changes in this Section 10.02 and Section
6.09, or the deletion of this proviso, in accordance with the requirements
of Sections 9.10 and 10.01(g).
(b) A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, will be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
(c) It will not be necessary for any Act of Holders under this
Section 10.02 to approve the particular form of any proposed supplemental
indenture, but it will be sufficient if such Act approves the substance thereof.
10.03. Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article X or the modifications
thereby of the trusts created by this Indenture, the Trustee will be entitled
to receive, and (subject to Section 9.01) will be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but will not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties,
or immunities under this Indenture or otherwise.
10.04. Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article X,
this Indenture will be modified in accordance therewith, and such supplemental
indenture will form a part of this Indenture for all purposes; and every Holder
of
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Securities theretofore or thereafter authenticated and delivered hereunder will
be bound thereby.
10.05. Conformity with Trust Indenture Act
Every supplemental indenture executed pursuant to this Article X will
conform to the requirements of the Trust Indenture Act.
10.06. Reference in Securities to Supplemental Indentures
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article X may, and will
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE XI. CONSOLIDATION, MERGER, SALE, OR TRANSFER
11.01. Consolidations and Mergers of Company and Sales Permitted Only on
Certain Terms
(a) The Company shall not consolidate with or merge with or into any
other Person, or transfer (by lease, assignment, sale, or otherwise) all or
substantially all of its properties and assets to another Person unless (i)
either (A) the Company shall be the continuing or surviving Person in such a
consolidation or merger or (B) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or to which all or
substantially all of the properties and assets of the Company are transferred
(the Company or such other Person being referred to as the "Surviving Person")
shall be a corporation organized and validly existing under the laws of the
United States, any state thereof, or the District of Columbia, and shall
expressly assume, by an indenture supplement, all the obligations of the Company
under the Securities and the Indenture, (ii) immediately after the transaction
and the incurrence or anticipated incurrence of any Indebtedness to be incurred
in connection therewith, no Default will exist, and (iii) an Officer's
Certificate has been delivered to the Trustee to the effect that the conditions
set forth in the preceding clauses (i) and (ii) have been satisfied and an
Opinion of Counsel (from a counsel who shall not be an employee of the Company)
has been delivered to the Trustee to the effect that the conditions set forth in
the preceding clause (i) have been satisfied.
(b) The Surviving Person will succeed to and be substituted for the
Company with the same effect as if it had been named herein as a party hereto,
and
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thereafter the predecessor corporation will be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE XII. SATISFACTION AND DISCHARGE OF INDENTURE
12.01. Satisfaction and Discharge of Indenture
This Indenture will upon a Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense the Company, will execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when: (a) either (i) all Securities
theretofore authenticated and delivered (other than (A) Securities which have
been destroyed, lost, or stolen and which have been replaced or paid as provided
in Section 2.07 and (B) Securities for the payment of which money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 6.03) have been delivered to the Trustee for cancellation or
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation (A) have become due and payable, (B) will become due and payable at
their Stated Maturity within one year, or (C) are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company, and the Company, in the case of clause (A), (B), or (C) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust for
such purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation,
for principal and any premium and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be; (b) the Company has paid or caused to be
paid all other sums payable hereunder by the Company; and (c) the Company has
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.06, the obligations of
the Trustee to any Authenticating Agent under Section 9.13, and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section 12.01, the obligations of the Trustee under Sections 6.03(e) and
12.02, will survive.
12.02. Application of Trust Money
Subject to provisions of Section 6.03(e), all money deposited with the
Trustee pursuant to Section 12.01 will be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any
56
<PAGE>
premium and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE XIII. MISCELLANEOUS PROVISIONS
13.01. Successors and Assigns of Company Bound by Indenture
All the covenants, stipulations, promises, and agreements in this
Indenture contained by or on behalf of the Company will bind its successors and
assigns, whether so expressed or not.
13.02. Service of Required Notice to Trustee and Company
Any request, demand, authorization, direction, notice, consent,
waiver, Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with (a) the Trustee by any
Holder or by the Company will be sufficient for every purpose hereunder if made,
given, furnished, or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Department or (b) the Company by the
Trustee or by any Holder will be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at 7 West Seventh Street,
Cincinnati, Ohio 45202 (marked for the attention of both the Chief Financial
Officer and the General Counsel) or at any other address previously furnished in
writing to the Trustee by the Company.
13.03. Service of Required Notice to Holders; Waiver
Where this Indenture provides for notice to Holders of any event,
such notice will be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
will affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver will be the equivalent of such
notice. Waivers of notice by Holders will be filed with the Trustee, but
such filing will not be a condition precedent to the validity of any action
taken in reliance upon such waiver. In case by reason of the suspension of
regular mail service or by reason of any other cause it will be impracticable
to give such notice by mail, then such notification as may be made with the
approval of the Trustee will constitute a sufficient notification for every
purpose hereunder.
57
<PAGE>
13.04. Indenture and Securities to be Construed in Accordance with the Laws
of the State of New York
This Indenture and the Securities will be deemed to be a contract made
under the laws of the State of New York, and for all purposes will be construed
in accordance with the laws of said State without giving effect to principles of
conflict of laws of such State.
13.05. Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company will
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion will be given in the
form of an Officer's Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and will comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
13.06. Form of Documents Delivered to Trustee
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. Where any
Person is required to make, give, or execute two or more applications, requests,
consents, certificates, statements, opinions, or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
13.07. Payments Due on Non-Business Days
In any case where any Interest Payment Date, Redemption Date, or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision will apply in lieu of this Section
13.07)) payment of interest or principal (and premium, if any) need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated Maturity,
PROVIDED that interest will accrue for the period from and after such Interest
Payment Date, Redemption Date, or Stated Maturity, as the case may be.
58
<PAGE>
13.08. Provisions Required by Trust Indenture Act to Control
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed on any Person by Sections 310 to and including 317 of
the Trust Indenture Act (including provisions automatically deemed included in
this Indenture pursuant to the Trust Indenture Act unless this Indenture
provides that such provisions are excluded), which are deemed to be a part of
and govern this Indenture, whether or not contained herein, then such imposed
duties will control.
13.09. Invalidity of Particular Provisions
In case any one or more of the provisions contained in this Indenture
or in the Securities is for any reason held to be invalid, illegal, or
unenforceable in any respect, such the validity, illegality, or enforceability
will not affect any other provision of this Indenture or of the Securities, but
this Indenture and such Securities will be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
13.10. Indenture May be Executed In Counterparts
This instrument may be executed in any number of counterparts, each of
which will be an original, but such counterparts will together constitute but
one and the same instrument.
13.11. Acts of Holders; Record Dates
(a) Any request, demand, authorization, direction, notice, consent,
waiver, or other action provided or permitted by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action will become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent will be sufficient for any purpose of this
Indenture and (subject to Section 9.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section 13.11.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit will also constitute sufficient proof of
his authority. The fact and date of the execution of
59
<PAGE>
any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities will be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver, or other Act of the Holder of any Security will bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange thereof or in lieu thereof in
respect of anything done, omitted, or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may, in the circumstances permitted by the Trust
Indenture Act, set any day as the record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver, or other
action provided or permitted by this Indenture to be given or taken by Holders
of Securities of such series. With regard to any record date set pursuant to
this paragraph, the Holders of Outstanding Securities of the relevant series on
such record date (or their duly appointed agents), and only such Persons, will
be entitled to give or take the relevant action, whether or not such Holders
remain Holders after such record date. With regard to any action that may be
given or taken hereunder only by Holders of a requisite principal amount of
Outstanding Securities of any series (or their duly appointed agents) and for
which a record date is set pursuant to this paragraph, the Company may, at its
option, set an expiration date after which no such action purported to be given
or taken by any Holder will be effective hereunder unless given or taken on or
prior to such expiration date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date (or their duly
appointed agents). On or prior to any expiration date set pursuant to this
paragraph, the Company may, on one or more occasions at its option, extend such
date to any later date. Nothing in this paragraph will prevent any Holder (or
any duly appointed agent thereof) from giving or taking, after any such
expiration date, any action identical to, or, at any time, contrary to or
different from, the action or purported action to which such expiration date
relates, in which event the Company may set a record date in respect thereof
pursuant to this paragraph. Nothing in this Section 13.11(e) will be construed
to render ineffective any action taken at any time by the Holders (or their duly
appointed agents) of the requisite principal amount of Outstanding Securities of
the relevant series on the date such action is so taken. Notwithstanding the
foregoing or the Trust Indenture Act, the Company will not set a record date
for, and the provisions of this Section 13.11(e) will not apply with respect to,
any notice, declaration, or direction referred to in the next paragraph.
(f) Upon receipt by the Trustee from any Holder of Securities of a
particular series of (a) any notice of default or breach referred to in Section
8.01(a)(iv) or 8.01(a)(v) with respect to Securities of such series, if such
default or breach has occurred and is continuing and the Trustee shall not have
given such notice to the
60
<PAGE>
Company, (b) any declaration of acceleration referred to in Section 8.01(b), if
an Event of Default with respect to Securities of such series has occurred and
is continuing and the Trustee shall not have given such a declaration to the
Company, or (c) any direction referred to in Section 8.06 with respect to
Securities of such series, if the Trustee shall not have taken the action
specified in such direction, then a record date will automatically and without
any action by the Company or the Trustee be set for determining the Holders of
Outstanding Securities of such series entitled to join in such notice,
declaration, or direction, which record date will be the close of business on
the tenth calendar day following the day on which the Trustee receives such
notice, declaration, or direction. Promptly after such receipt by the Trustee,
and in any case not later than the fifth calendar day thereafter, the Trustee
will notify the Company and the Holders of Outstanding Securities of such series
of any such record date so fixed. The Holders of Outstanding Securities of such
series on such record date (or their duly appointed agents), and only such
Persons, will be entitled to join in such notice, declaration, or direction,
whether or not such Holders remain Holders after such record date; PROVIDED
that, unless such notice, declaration, or direction shall have become effective
by virtue of Holders of the requisite principal amount of Outstanding Securities
of such series on such record date (or their duly appointed agents) having
joined therein on or prior to the 90th calendar day after such record date, such
notice, declaration, or direction will automatically and without any action by
any Person be cancelled and of no further effect. Nothing in this Section
13.11(f) will be construed to prevent a Holder (or a duly appointed agent
thereof) from giving, before or after the expiration of such 90-day period, a
notice, declaration, or direction contrary to or different from, or, after the
expiration of such period, identical to, the notice, declaration, or direction
to which such record date relates, in which event a new record date in respect
thereof will be set pursuant to this Section 13.11(f). Nothing in this Section
13.11(f) will be construed to render ineffective any notice, declaration, or
direction of the type referred to in this Section 13.11(f) given at any time to
the Trustee and the Company by Holders (or their duly appointed agents) of the
requisite principal amount of Outstanding Securities of the relevant series on
the date such notice, declaration, or direction is so given.
(g) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
13.12. Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents are
for convenience only and will not affect the construction hereof.
61
<PAGE>
13.13. Benefits of Indenture
Nothing in this Indenture or in the Securities, express or implied,
will give to any Person, other than the parties hereto and their successors
hereunder and the Holders any benefit or any legal or equitable right,
remedy, or claim under this Indenture.
____________________
62
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
[Seal] FEDERATED DEPARTMENT STORES, INC.
By: /s/ KAREN M. HOGUET
----------------------
Name: Karen M. Hoguet
Title: Senior Vice President and Treasurer
Attest:
/s/ SUSAN P. STORER
-----------------------
Name: Susan P. Storer
Title: Operating Vice President
and Assistant Treasurer
CITIBANK, N.A., as Trustee
By: /s/ CAROL NG
-----------------
Name: Carol Ng
Title: Vice President
Attest:
/s/ KRISTINE PRALL
---------------------
Name: Kristine Prall
Title: Trust Officer
63
<PAGE>
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON)
On this 4th day of September, 1997, before me personally came Karen
M. Hoguet, to me known, who, being by me duly sworn, did depose and say that
he/she is Senior Vice President and Treasurer of Federated Department Stores,
Inc., one of the entities described in and which executed the above
instrument; that he/she knows the seal of said entity; that the seal or a
facsimile thereof affixed to said instrument is such seal; that it was so
affixed by authority of the Board of Directors of said entity, and that
he/she signed his/her name thereto by like authority.
/s/ Carol S. Bruser
---------------------- [Seal]
Notary Public
In Witness Whereof, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Carol S. Bruser
---------------------- [Seal]
Notary Public
64
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 11th day of September, 1997, before me personally came Carol Ng,
to me known, who, being by me duly sworn, did depose and say that he/she is
Vice President of Citibank, N.A., one of the entities described in and which
executed the above instrument; that he/she knows the seal of said entity;
that the seal or a facsimile thereof affixed to said instrument is such seal;
that it was so affixed by authority of the Board of Directors of said entity,
and that he/she signed his/her name thereto by like authority.
/s/ JEFFRY BERGER
--------------------
Notary Public
In Witness Whereof, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ JEFFRY BERGER [Seal]
------------------
Notary Public
65
<PAGE>
EXHIBIT 5.1
JONES, DAY, REAVIS & POGUE
599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
September 11, 1997
Federated Department Stores, Inc.
7 West Seventh Street
Cincinnati, Ohio 45202
Re: Registration on Form S-3 of up to $1,000,000,000
of Securities of Federated Department Stores, Inc.
Ladies and Gentlemen:
We are acting as counsel to Federated Department Stores, Inc., a Delaware
corporation (the "Company"), in connection with the authorization of the
possible issuance and sale from time to time by the Company of (i) certain debt
securities of the Company (the "Debt Securities"), (ii) shares of the Company's
common stock, par value $.01 per share (the "Common Stock"), (iii) shares of one
or more series of the Company's preferred stock, par value $.01 per share (the
"Preferred Stock"), and (iv) certain warrants to purchase Debt Securities,
Common Stock, Preferred Stock, or a combination thereof (the "Warrants"), in
each case as contemplated by the Company's Registration Statement on Form S-3
(the "Registration Statement"). The Debt Securities, Common Stock, Preferred
Stock, and Warrants are collectively referred to herein as the "Securities."
Except as otherwise defined herein, capitalized terms that are defined in the
Registration Statement are used herein as so defined.
We have examined such documents, records, and matters of law as we have
deemed necessary for purposes of this opinion. Based on such examination and on
the assumptions set forth below, we are of the opinion that:
1. The Debt Securities, when (a) duly executed by the Company and
authenticated by the Trustee in accordance with the provisions of the
Indenture and issued and sold in accordance with the Registration
Statement and (b) delivered to the purchaser or purchasers thereof upon
receipt by the Company of such lawful consideration therefor as the
Company's Board of Directors (or a duly authorized committee thereof or a
duly authorized officer of the Company) may determine, will be valid and
binding obligations of the Company.
2. The Common Stock, when (a) issued and sold in accordance with the
Registration Statement and (b) delivered to the purchaser or purchasers
thereof upon receipt by the Company of such lawful consideration therefor
as the Company's Board of Directors (or a duly authorized committee
thereof or a duly authorized officer of the Company) may determine,
assuming that the Company at such time has authorized but unissued shares
of Common Stock remaining under its Certificate of Incorporation, will be
validly issued, fully paid and nonassessable.
3. The Preferred Stock, when (a) issued and sold in accordance with the
Registration Statement and the provisions of an applicable Certificate of
Designation that has been duly adopted by the Board of Directors of the
Company and duly filed in accordance with Delaware law and (b) delivered
to the purchaser or purchasers thereof upon receipt by the Company of
such lawful consideration therefor as the Company's Board of Directors
(or a duly authorized committee thereof or a duly authorized officer of
the Company) may determine, will be validly issued, fully paid and
nonassessable.
4. The Warrants, when (a) issued and sold in accordance with the
Registration Statement and the provisions of an applicable Warrant
Agreement and (b) delivered to the purchaser or purchasers thereof upon
receipt by the Company of such lawful consideration therefor as the
Company's
<PAGE>
Board of Directors (or a duly authorized committee thereof or a duly
authorized officer of the Company) may determine, will be valid and
binding obligations of the Company.
In rendering the foregoing opinions, we have assumed that (i) the definitive
terms of each class and series of the Securities not presently provided for in
the Indenture or the Company's Certificate of Incorporation will have been
established in accordance with all applicable provisions of law, the Indenture,
the Company's Certificate of Incorporation and By-Laws, and the authorizing
resolutions of the Company's Board of Directors, and reflected in appropriate
documentation approved by us and, if applicable, duly executed and delivered by
the Company and any other appropriate party, (ii) the interest rate on the Debt
Securities will not be higher than the maximum lawful rate permitted from time
to time under applicable law, (iii) any Securities consisting of Common Stock or
Preferred Stock, and any Common Stock or Preferred Stock for or into which any
other Securities are exercisable, exchangeable or convertible, will have been
duly authorized and reserved for issuance, (iv) each Warrant Agreement will have
been duly authorized, executed and delivered by, and will constitute a valid and
binding obligation of, each party thereto, (v) the Registration Statement, and
any amendments thereto, will have become effective, (vi) a Prospectus Supplement
describing each class or series of Securities offered pursuant to the
Registration Statement will have been filed with the Commission, (vii) the
resolutions authorizing the Company to register, offer, sell, and issue the
Securities will remain in effect and unchanged at all times during which the
Securities are offered, sold, or issued by the Company, and (viii) all
Securities will be issued in compliance with applicable federal and state
securities laws.
In rendering the foregoing opinion, we have relied as to certain factual
matters upon certificates of officers of the Company, and we have not
independently checked or verified the accuracy of the statements contained
therein. In rendering the foregoing opinion, our examination of matters of law
has been limited to the laws of the State of New York, the General Corporation
Law of the State of Delaware, and the federal laws of the United States of
America, as in effect on the date hereof.
We understand that prior to offering for sale any Securities you will advise
us in writing of the terms of such offering and of such Securities, will afford
us an opportunity to review the operative documents (including the applicable
Prospectus Supplement) pursuant to which the Securities are to be offered, sold,
and issued, and will file as an exhibit to the Registration Statement such
supplement or amendment to this opinion (if any) as we may reasonably consider
necessary or appropriate by reason of the terms of such Securities or any
changes in the Company's capital structure or other pertinent circumstances.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to us in the Prospectus under the
caption "Validity of Securities."
Very truly yours,
/s/ JONES, DAY, REAVIS & POGUE
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Shareholders
Federated Department Stores, Inc.:
We consent to the incorporation by reference in the registration statement
on Form S-3 of Federated Department Stores, Inc. of our report dated March 4,
1997 relating to the consolidated balance sheets of Federated Department Stores,
Inc. and subsidiaries as of February 1, 1997 and February 3, 1996 and the
related consolidated statements of income and cash flows for the fifty-two week
period ended February 1, 1997, the fifty-three week period ended February 3,
1996 and the fifty-two week period ended January 28, 1995, which report appears
in the February 1, 1997 annual report on Form 10-K of Federated Department
Stores, Inc. and to the reference to our firm under the heading "Experts" in the
registration statement.
<TABLE>
<S> <C> <C>
/s/ KPMG PEAT MARWICK LLP
</TABLE>
Cincinnati, Ohio
September 10, 1997
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305 (b)(2) ____
--------------------------------
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
---------------------------------
FEDERATED DEPARTMENT STORES, INC.
(Exact name of obligor as specified in its charter)
Delaware
13-3324058
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
7 West Seventh Street
Cincinnati, Ohio 45202
(Address of principal executive offices) (Zip Code)
---------------------------------
Debt Securities
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
NAME ADDRESS
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
33 Liberty Street
New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as exhibits hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now in
effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to
commence business. (Exhibit 2 to T-1 to Registration Statement No.
2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise corporate
trust powers. (Exhibit 3 to T-1 to Registration Statement No.
2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to
T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
<PAGE>
Exhibit 6 - The consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration
Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A.
(as of June 30, 1997 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
---------------------------------
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 2nd day of
September, 1997.
CITIBANK, N.A.
By /s/ Kristine Prall
--------------------
Kristine Prall
Trust Officer
<PAGE>
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
CITIBANK, N.A.
OF NEW YORK IN THE STATE OF NEW YORK, AT THE CLOSE OF BUSINESS ON JUNE 30, 1997,
PUBLISHED IN RESPONSE TO CALL MADE BY COMPTROLLER OF THE CURRENCY, UNDER TITLE
12, UNITED STATES CODE, SECTION 161. CHARTER NUMBER 1461 COMPTROLLER OF THE
CURRENCY NORTHEASTERN DISTRICT.
ASSETS
Thousands
of dollars
Cash and balances due from de-
pository institutions:
Noninterest-bearing balances
and currency and coin $ 7,129,000
Interest-bearing balances 14,089,000
Held-to-maturity securities 0
Available-for-sale securities 32,578,000
Federal funds sold and
securities purchased under
agreements to resell 10,072,000
Loans and lease financing receivables:
Loans and Leases, net of
unearned income $150,867,000
LESS: Allowance for loan
and lease losses 4,253,000
Loans and leases, net of unearned
income, allowance, and reserve 146,614,000
Trading assets 27,966,000
Premises and fixed assets (includ-
ing capitalized leases) 3,576,000
Other real estate owned 670,000
Investments in unconsolidated
subsidiaries and associated companies 1,284,000
Customers' liability to this bank
on acceptances outstanding 2,146,000
Intangible assets 180,000
Other assets 8,193,000
------------
TOTAL ASSETS $254,497,000
============
LIABILITIES
Deposits:
In domestic offices $ 36,303,000
Noninterest - bearing $ 12,930,000
Interest-bearing 23,373,000
In foreign offices, Edge and
Agreement subsidiaries, and
IBFs 142,390,000
Noninterest-bearing 11,307,000
Interest-bearing 131,083,000
Federal funds purchased and
securities sold under agree-
ments to repurchase 7,627,000
Trading liabilities 22,259,000
Other borrowed money (includes
mortgage indebtedness and
obligations under capitalized
leases):
With a remaining maturity of one
year or less 8,826,000
With a remaining maturity of more
than one year through three years 2,250,000
With a remaining maturity of more
than three years 1,656,000
Bank's liability on acceptances ex-
ecuted and outstanding 2,183,000
Subordinated notes and
debentures 5,200,000
Other liabilities 8,663,000
------------
TOTAL LIABILITIES $237,357,000
============
EQUITY CAPITAL
Perpetual preferred stock
and related surplus 0
Common stock $ 751,000
Surplus 7,340,000
Undivided profits and capital re-
serves 8,949,000
Net unrealized holding gains (losses)
on available-for-sale securities 743,000
Cumulative foreign currency
translation adjustments (643,000)
------------
TOTAL EQUITY CAPITAL $ 17,140,000
------------
TOTAL LIABILITIES, LIMITED-
LIFE PREFERRED STOCK, AND
EQUITY CAPITAL $254,497,000
============
I, Roger W. Trupin, Controller of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
ROGER W. TRUPIN
CONTROLLER
We, the undersigned directors, attest to the correctness of this Report of
Condition. We declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions and
is true and correct.
PAUL J. COLLINS
JOHN S. REED
WILLIAM R. RHODES
DIRECTORS
