EXHIBIT 4.1
THE MAY DEPARTMENT STORES COMPANY,
Issuer
THE MAY DEPARTMENT STORES COMPANY,
Guarantor
AND
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
Trustee
INDENTURE
Dated as of July 20, 2004
GUARANTEED DEBT SECURITIES
THE MAY DEPARTMENT STORES COMPANY
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
310(a)(1)............................................6.09
(a)(2)............................................6.09
(a)(3)............................................Not Applicable
(a)(4)............................................Not Applicable
(b)............................................6.08
6.10
311(a)............................................6.13
(b)............................................6.13
312(a)............................................7.01
7.02
(b)............................................7.02
(c)............................................7.02
313(a)............................................7.03
(b)............................................7.03
(c)............................................7.03
(d)............................................7.03
314(a)............................................7.04
(a)(4)............................................1.01
10.04
(b)............................................Not Applicable
(c)(1)............................................1.02
(c)(2)............................................1.02
(c)(3)............................................Not Applicable
(d)............................................Not Applicable
(e)............................................1.02
315(a)............................................6.01
(b)............................................6.02
(c)............................................6.01
(d)............................................6.01
(e)............................................5.14
316(a)............................................1.01
(a)(1)(A)............................................5.02
5.12
(a)(1)(B)............................................5.13
(a)(2)............................................Not Applicable
(b)............................................5.08
(c)............................................1.04
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317(a)(1)............................................5.03
(a)(2)............................................5.04
(b)............................................10.03
318(a)............................................1.07
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TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions........................................8
Section 1.02. Compliance Certificates and Opinions..............21
Section 1.03. Form Of Documents Delivered To Trustee............22
Section 1.04. Acts of Holders; Record Dates.....................22
Section 1.05. Notices, etc., to Trustee and Company.............25
Section 1.06. Notice To Holders; Waiver.........................25
Section 1.07. Conflict With Trust Indenture Act.................25
Section 1.08. Effect of Headings and Table of Contents..........26
Section 1.09. Successors and Assigns............................26
Section 1.10. Separability Clause...............................26
Section 1.11. Benefits of Indenture.............................26
Section 1.12. Governing Law.....................................26
Section 1.13. Legal Holidays....................................26
Section 1.14. No Adverse Interpretation of Other Agreements.....26
Section 1.15. No Recourse Against Others........................26
ARTICLE 2
SECURITY FORMS
Section 2.01. Forms Generally...................................27
Section 2.02. Form of Face of Security..........................30
Section 2.03. Form of Reverse of Security.......................33
Section 2.04. Form of Legend for Securities.....................36
Section 2.05. Form of Trustee's Certification of Authentication.39
Section 2.06. Form of Guarantee.................................39
ARTICLE 3
THE SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series..............40
Section 3.02. Denominations.....................................43
Section 3.03. Execution, Authentication, Delivery and Dating....43
Section 3.04. Temporary Securities..............................45
Section 3.05. Registration, Registration Of Transfer And
Exchange; Certain Transfers And Exchanges................46
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities..56
Section 3.07. Payment of Interest; Interest Rights Preserved....57
Section 3.08. Persons Deemed Owners.............................58
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Section 3.09. Cancellation......................................58
Section 3.10. Computation of Interest...........................59
ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture...........59
Section 4.02. Application of Trust Money........................60
ARTICLE 5
REMEDIES
Section 5.01. Events of Default.................................60
Section 5.02. Acceleration of Maturity; Rescission and
Annulment................................................62
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee...................................63
Section 5.04. Trustee May File Proofs of Claim..................63
Section 5.05. Trustee May Enforce Claims Without Possession of
Securities...............................................64
Section 5.06. Application of Money Collected....................64
Section 5.07. Limitation on Suits...............................64
Section 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest..........................65
Section 5.09. Restoration of Rights and Remedies................65
Section 5.10. Rights and Remedies Cumulative....................66
Section 5.11. Delay or Omission Not Waiver......................66
Section 5.12. Control By Holders................................66
Section 5.13. Waiver or Past Defaults...........................66
Section 5.14. Undertaking for Costs.............................67
ARTICLE 6
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities...............67
Section 6.02. Notice of Defaults................................67
Section 6.03. Certain Rights of Trustee.........................67
Section 6.04. Not Responsible for Recitals or Issuance of
Securities...............................................68
Section 6.05. May Hold Securities...............................69
Section 6.06. Money Held In Trust...............................69
Section 6.07. Compensation And Reimbursement....................69
Section 6.08. Conflicting Interests.............................69
Section 6.09. Corporate Trustee Required; Eligibility...........70
Section 6.10. Resignation And Removal; Appointment Of
Successor................................................70
Section 6.11. Acceptance of Appointment by Successor............72
Section 6.12. Merger, Conversion, Consolidation or
Succession to Business...................................73
Section 6.13. Preferential Collection of Claims Against
Company..................................................73
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ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses
of Holders...............................................73
Section 7.02. Preservation of Information; Communications
to Holders...............................................74
Section 7.03. Reports By Trustee................................74
Section 7.04. Reports By Company................................74
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Consolidation, Merger or Sale.....................75
Section 8.02. Successor Substituted.............................75
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of
Holders..................................................76
Section 9.02. Supplemental Indentures With Consent of
Holders..................................................77
Section 9.03. Execution of Supplemental Indentures..............79
Section 9.04. Effect of Supplemental Indentures.................79
Section 9.05. Conformity with Trust Indenture Act...............79
Section 9.06. Reference in Securities to Supplemental
Indentures...............................................79
ARTICLE 10
COVENANTS
Section 10.01. Payment of Principal, Premium and Interest.......79
Section 10.02. Maintenance of Office or Agency..................80
Section 10.03. Money for Securities Payments to Be Held
in Trust.................................................80
Section 10.04. Corporate Existence..............................81
Section 10.05. Limitation of Liens..............................82
Section 10.06. Payment of Taxes and Other Claims................85
Section 10.07. Maintenance of Properties........................85
Section 10.08. Restriction On Permitting Restricted
Subsidiaries To Become Unrestricted Subsidiaries
And Unrestricted Subsidiaries To Become Restricted
Subsidiaries.............................................85
Section 10.09. Waiver of Covenant...............................87
Section 10.10. Statements as to Compliance......................87
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.01. Applicability of Article.........................87
Section 11.02. Election To Redeem; Notice To Trustee............87
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Section 11.03. Selection by Trustee of Securities to Be
Redeemed.................................................88
Section 11.04. Notice of Redemption.............................88
Section 11.05. Deposit of Redemption Price......................89
Section 11.06. Securities Payable on Redemption Date............89
Section 11.07. Securities Redeemed In Part......................89
Section 11.08. Mandatory Redemption. ..........................90
ARTICLE 12
DEFEASANCE AND COVENANT DEFEASANCE
Section 12.01. Company's Option to Effect Defeasance or
Covenants Defeasance.....................................90
Section 12.02. Defeasance and Discharge.........................90
Section 12.03. Covenant Defeasance..............................91
Section 12.04. Conditions to Defeasance or Covenant
Defeasance...............................................91
Section 12.05. Deposited Money, U.S. Government Obligations
and Foreign Government Securities to Be Held in
Trust; Miscellaneous Provisions..........................94
Section 12.06. Reinstatement....................................94
ARTICLE 13
GUARANTEE OF SECURITIES
Section 13.01. Unconditional Guarantee..........................95
Section 13.02. Execution of Guarantee...........................96
Section 13.03. Assumption by Guarantee..........................97
Annex A-1 - Form of Transfer Certificate - Restricted Global Security to
Temporary Regulation S Global Security
Annex A-2 - Form of Transfer Certificate - Restricted Global Security to
Regulation S Global Security
Annex B - Form of Transfer Certificate - Temporary Regulation S Global
Security or Regulation S Global Security to Restricted
Global Security
Annex C-1 - Form of Certification to be Given by Holders of Beneficial
Interests in a Temporary Regulation S Global Security to
Euroclear or Clearstream
Annex C-2 - Form of Certification to be Given by the Euroclear Operator
or Clearstream
Annex C-3 - Form of Certification to be Given by Transferee of
Beneficial Interest in a Temporary Regulation S Global
Security After the Restricted Period
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Annex D-1 - Form of Transfer Certificate - Non-Global Restricted
Security to Restricted Global Security
Annex D-2 - Form of Certificate - Non-Global Restricted Security to
Regulation S Global Security or Temporary Regulation S
Global Security
Annex E - Accredited Investor Letter
Annex F - Form of Instruction for Exchange
vii
INDENTURE, dated as of July 20, 2004, among The May Department Stores Company,
a New York corporation (the "Company"), having its principal office in St.
Louis, Missouri, The May Department Stores Company, a Delaware corporation
(the "Guarantor"), and X.X. Xxxxxx Trust Company, National Association, a
national banking association duly organized and existing under the laws of the
United States of America, as Trustee (the "Trustee").
RECITALS
The Company and the Guarantor have duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of the
Company's unsecured debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more series as
provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the Company
and the Guarantor in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Securities by
the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles
and, except as to any computation required or permitted pursuant to, and
relating to any covenant of the Company contained in, any indenture
supplemental hereto relating to any series of Securities, which such
computation (unless otherwise provided in such supplemental indenture) shall
be made in accordance with generally accepted accounting principles as are
generally accepted at the date of such supplemental indenture, or except as
otherwise herein or in any indenture supplemental hereto expressly provided,
the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of the Depositary for such Security, Euroclear and Clearstream, in
each case to the extent applicable to such transaction and as in effect from
time to time.
"Board of Directors" means the board of directors of the Company or the
Guarantor, the Executive Committee or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Company or the Guarantor to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or the Corporate Trust Office
are authorized or obligated by law or executive order to close.
"Certificated Security" has the meaning set forth in Section 2.01.
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"Clearstream" means Clearstream Banking, societe anonyme, Luxembourg (or any
successor securities clearing agency).
"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.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Request" or "Company Order" means a written request or order signed
in the name of the Company by the Chairman of the Board, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Comparable Treasury Issue" means the United States Treasury security selected
by the Independent Investment Banker as having a maturity comparable to the
remaining term of the Securities to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Securities.
"Comparable Treasury Price" means with respect to any Redemption Date for the
Securities (i) the average of five Reference Treasury Dealer Quotations for
that Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations or (ii) if the Trustee obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Consolidated Net Tangible Assets" means (i) the total amount of assets (less
applicable reserves and other properly deductible items) which under generally
accepted accounting principles would be included on a consolidated balance
sheet of the Company and its Restricted Subsidiaries after deducting therefrom
(a) all liabilities and liability items including amounts in respect of
obligations under leases, which under generally accepted accounting principles
would be included on such balance sheet, except Funded Debt, capital stock and
surplus, surplus reserves and deferred income taxes and deferred investment
tax credit and (b) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles, which in each case under
generally accepted accounting principles would be included on such
consolidated balance sheet, less (ii) the amount which would be so included on
such consolidated balance sheet for Investments (less applicable reserves) (a)
10
made in Unrestricted Subsidiaries or (b) made in corporations while they were
Unrestricted Subsidiaries but which at the time of computation are not
Subsidiaries of the Company.
"Corporate Trust Office" means the office of the Trustee at which the trust
created by this Indenture is administered, which office as of the date hereof
is located at 000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000;
Attention: Institutional Trust Services.
"Covenant Defeasance" has the meaning specified in Section 12.03.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Defeasance" has the meaning specified in Section 12.02.
"Depositary" means, with respect to Securities of any series issuable or
issued 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 3.01 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture. "Depositary" as used with respect to the
Securities of any series shall mean the Depositary with respect to the
Securities of that series.
"Dollar" means the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
"DTC" means The Depository Trust Company.
"Euroclear" means the Euroclear Bank S.A./N.V. as operator of the Euroclear
System (or any successor securities clearing agency).
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Exchange Offer" has the meaning set forth in the form of the Securities
contained in Section 2.02.
"Exchange Registration Statement" has the meaning set forth in the form of the
Securities contained in Section 2.02.
"Exchange Security" means any Security issued in exchange for an Original
Security or Original Securities pursuant to the Exchange Offer or otherwise,
and registered under the Securities Act, which Exchange Securities may, if
permitted under the rules and regulations of the Commission and the Trust
11
Indenture Act, be issued under the Existing Indenture, and any Security with
respect to which the next preceding Predecessor Security of such Security was
an Exchange Security.
"Existing Indenture" means that certain Indenture, dated as June 17, 1996,
among the Company, the Guarantor and the Trustee (as successor in interest to
The First National Bank of Chicago), relating to the guaranteed debt
securities of the Company.
"Expiration Date" has the meaning specified in Section 1.04.
"Foreign Currency" means a currency issued by the government of any country
other than the United States.
"Foreign Government Securities" has the meaning specified in Section 12.04.
"Funded Debt" means (i) all indebtedness which by its terms matures more than
12 months after the time of the computation of the amount thereof or which is
extendible or renewable at the option of the obligor on such indebtedness to a
time more than 12 months after the time of the computation of the amount
thereof, (ii) all guarantees, direct or indirect, of any such indebtedness or
of any such obligations of others or of dividends, other than any guarantee in
connection with the sale or discount by the Company or any Restricted
Subsidiary of accounts receivable, trade acceptances, and other paper arising
in the ordinary course of business, and other than guarantees of such
indebtedness or any such obligations of others which are included in clauses
(i) or (iii) of this definition, and (iii) in the case of any Subsidiary, all
Preferred Stock of such Subsidiary, taken at the greater of its voluntary or
involuntary liquidation price at the time of any calculation hereunder, but
exclusive of accrued dividends, if any; provided that any obligations in
respect of lease rentals, whether or not such obligations would be included as
liabilities on a consolidated balance sheet of the Company and its Restricted
Subsidiaries, shall not be included in Funded Debt. For the purposes of this
definition, the term "indebtedness", when used at any date with respect to the
principal outstanding amount of the Securities, shall mean the principal
amount of the Securities that could be declared due and payable on that date
pursuant to Section 5.02. The Company or any Restricted Subsidiary shall be
deemed to have assumed Funded Debt secured by any Mortgage upon any of its
property or assets whether or not it has actually done so.
"Global Security" means a Security that evidences all or part of the
Securities of any series, registered in the name of the Depositary, and bears
the legend set forth in Section 2.04 (or such legend as may be specified as
contemplated by Section 3.01 for such Securities).
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"Guarantee" means the Guarantor's unconditional guarantee of the payment of
the amounts owed with respect to the Securities as more fully described in
Article Thirteen.
"Guarantor" means the person named as the "Guarantor" in the first paragraph
of this instrument together with any additional Person who shall execute a
supplemental indenture pursuant to which it shall guarantee under this
Indenture any Securities, in each case, until a successor corporation shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Guarantor" shall mean such successor corporation.
"Holder" means a person in whose name a Security is registered in the Security
Register.
"Indebtedness" means (i) all items of indebtedness or liability (except
capital and surplus) which in accordance with generally accepted accounting
principles would be included in determining total liabilities as shown on the
liability side of a balance sheet as at the date as of which indebtedness is
to be determined, (ii) indebtedness secured by any Mortgage existing on
property owned subject to such Mortgage, whether or not the indebtedness
secured thereby shall have been assumed and (iii) guarantees, endorsements
(other than for purposes of collection) and other contingent obligations in
respect of, or to purchase or otherwise acquire, indebtedness of others,
unless the amount thereof is included in indebtedness under the preceding
clauses (i) or (ii); provided that any obligations in respect of lease
rentals, whether or not such obligations would be included as liabilities on a
consolidated balance sheet of the Company its Restricted Subsidiaries, shall
not be included in Indebtedness. For the purposes of this definition the term
"indebtedness", when used at any date with respect to the principal
outstanding amount of the Securities, shall mean the principal amount of the
Securities that could be declared due and payable on that date pursuant to
Section 5.02.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including,
for all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and
govern this instrument and any such supplemental indenture, respectively. The
term "Indenture" shall also include the terms of particular series of
Securities established as contemplated by Section 3.01.
"Independent Investment Banker" means Xxxxxx Xxxxxxx & Co. Incorporated or, if
that firm is unwilling or unable to select the Comparable Treasury Issues, an
independent investment banking institution of national standing appointed by
the Trustee after consultation with the Company.
13
"Institutional Accredited Investor" means an institution that is an
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Investments" means and includes all investments, whether by acquisition of
stock or indebtedness, or by loan, advance, transfer of property, capital
contribution or otherwise, made by the Company or by any Restricted
Subsidiary, and shall include all guarantees, direct or indirect, by the
Company or any Restricted Subsidiary of any Indebtedness of an Unrestricted
Subsidiary which by its term matures 12 months or less from the time of
computation of the amount thereof to the extent not included as a liability or
liability item on the consolidated balance sheet of the Company and its
Restricted Subsidiaries, but shall not include accounts receivable of the
Company or of any Restricted Subsidiary arising from the sale of merchandise
in the ordinary course of business.
"Issue Date" means, with respect to any series, the first date on which the
Securities of such series are initially issued.
"Xxxxxxxx Xxxxx'x Transaction" means the purchase of the assets of the
Xxxxxxxx Xxxxxx department stores and the real estate associated with nine
Mervyn's stores from the Target Corporation as contemplated in the offering
memorandum of the Company and Guarantor dated July 13, 2004.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" means and includes any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance.
"Notice of Default" means a written notice of the kind specified in Section
5.01(4).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Controller, the
14
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
such corporation, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel who is acceptable to
the Company and the Trustee, and who may be an employee of or counsel to the
Company, any other member of the Company or an Affiliate of any of them.
"Original Securities" means all Securities other than Exchange Securities.
"Outstanding", when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption (a) money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities or (b) U.S. Government Obligations or Foreign Government
Securities as contemplated by Section 12.04 in the necessary amount have been
theretofore deposited with the Trustee in trust for the Holders of such
Securities in accordance with Section 12.04; 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;
(3) Securities as to which Defeasance has been effected pursuant to Section
12.02 and
(4) Securities which have been paid pursuant to Section 3.06 or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder as of any date,
Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded and
15
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be considered 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" means any Person authorized by the Company to pay the principal
of (and premium, if any) or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, limited liability company,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock", as applied to the capital stock of any corporation, means
stock of any class or classes (however designated) which is preferred as to
the payment of dividends, or as to the distribution of assets on any voluntary
or involuntary liquidation or dissolution of such corporation, over shares of
stock of any other class of such corporation. The definition of the term
"Funded Debt" herein includes within the meaning of Funded Debt any Preferred
Stock of a Subsidiary.
"Purchase Agreement" means, with respect to a series of Securities, the
agreement between the Company and the Guarantor, on the one hand, and the
initial purchasers of such series of Securities named therein as such, on the
other hand, setting forth the terms and conditions for the initial offer and
sale of such Securities.
"Qualified Institutional Buyer" means a "qualified institutional buyer" as
defined in Rule 144A.
16
"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 or
the terms of any Security.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture or
the terms of such Security.
"Reference Treasury Dealer" means each of Citigroup Global Markets Inc., X.X.
Xxxxxx Securities Inc. and Xxxxxx Xxxxxxx & Co. Incorporated and their
respective successors, and two additional primary U.S. government securities
dealers selected by the Company, provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means with respect to each Reference
Treasury Dealer and any Redemption Date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third Business Day preceding that Redemption Date.
"Registered Securities" means the Exchange Securities and all other Securities
sold or otherwise disposed of pursuant to an effective registration statement
under the Securities Act, together with their respective Successor Securities.
"Registration Rights Agreement" means, with respect to Securities of any
series, the Registration Rights Agreement among the Company, the Guarantor and
the Initial Purchasers named under the Purchase Agreement in respect of the
Securities of such series.
"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 3.01.
"Regulation S" means Regulation S under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Regulation S Certificate" means a certificate substantially in the form set
forth in Annex A.
"Regulation S Global Security" has the meaning specified in Section 2.01.
17
"Regulation S Legend" means a legend substantially in the form set forth in
Section 2.04 to be placed upon each Regulation S Security.
"Regulation S Securities" means all Securities offered and sold pursuant to
Regulation S. Such term includes the Regulation S Global Security.
"Resale Registration Statement" has the meaning set forth in the form of the
Securities contained in Section 2.02.
"Responsible Officer", when used with respect to the Trustee, means any
officer in the Corporate Trust Office of the Trustee or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Global Security" has the meaning specified in Section 2.01.
"Restricted Period" for a series means the period of 40 consecutive days
beginning on and including the later of (i) the day on which Securities of
that series are first offered to persons other than distributors (as defined
in Regulation S) in reliance on Regulation S and (ii) the original issuance
date of the Securities of that series.
"Restricted Securities" means all Securities offered and sold pursuant to Rule
144A or to Institutional Accredited Investors in a transaction that is not
registered under the Securities Act. Such term includes the Restricted Global
Security and Certificated Securities.
"Restricted Securities Certificate" means a certificate substantially in the
form set forth in Annex B.
"Restricted Securities Legend" means, collectively, the legends substantially
in the forms set forth in Section 2.04 to be placed upon each Restricted
Security.
"Restricted Subsidiary" means any Subsidiary of the Company other than an
Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A Securities" means the Securities of a series purchased upon their
original issuance by the initial purchasers from the Company for resale
pursuant to Rule 144A.
18
"Secured Indebtedness" means any Indebtedness which is secured by a Mortgage
upon any assets of the Company or a Restricted Subsidiary, including in such
assets, without limitation, shares of stock or Indebtedness of any Subsidiary
owned by the Company or Restricted Subsidiary; provided that Indebtedness
secured by a Mortgage incurred or assumed in connection with an issuance of
revenue bonds the interest on which is exempt from federal income tax pursuant
to Section 103 of the Internal Revenue Code of 1986, as amended, shall not be
deemed Secured Indebtedness for the purpose of Section 10.05.
"Securities" has the meaning stated in the first recital of this Indenture and
more particularly means any Securities authenticated and delivered under this
Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Securities Act Legend" means a Restricted Securities Legend or a Regulation S
Legend.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
"Special Interest" has the meaning set forth in Section 2.02.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding Voting Stock
of which is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries, or by the Company and one or more other Subsidiaries.
"Successor Security" of any particular Security means every Security issued
after, and evidencing all or a portion of the same debt as that evidenced by,
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Temporary Regulation S Global Security" has the meaning specified in Section
2.01.
19
"Treasury Rate" means, with respect to any Redemption Date for the Securities,
(i) the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication which
is published weekly by the Board of Governors of the Federal Reserve System
and which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption "Treasury Constant
Maturities," for the maturity corresponding to the Comparable Treasury Issue
(if no maturity is within three months before or after the Maturity Date,
yields for the two published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Treasury Rate shall be
interpolated or extrapolated from those yields on a straight-line basis,
rounding to the nearest month) or (ii) if that release (or any successor
release) is not published during the week preceding the calculation date or
does not contain those yields, the rate per annum equal to the semi-annual
equivalent yield to maturity for the Comparable Treasury Issue, calculated
using a price for the Comparable Treasury Issue (expressed as a percentage of
its principal amount) equal to the Comparable Treasury Price for that
Redemption Date. The Treasury Rate shall be calculated on the third Business
Day preceding the Redemption Date.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the
date as of which this instrument was executed; provided, however, that in the
event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any
time there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"Unrestricted Subsidiary" means (i)(a) any Subsidiary substantially all of the
physical properties of which are located, or substantially all of the business
of which is carried on, outside the United States, its territories and
possessions and Puerto Rico, (b) any Subsidiary created (or acquired) after
the date hereof the primary business of which consists of financing operations
in connection with leasing and conditional sales transactions on behalf of the
Company and its Subsidiaries, and/or purchasing accounts receivable and/or
making loans secured by accounts receivable or inventory, or which is
otherwise primarily engaged in the business of a finance company, (c) May
Stores Seventy-Four Corporation and (d) any other Subsidiary which, in
accordance with the provisions of this Indenture, has been designated by Board
Resolution as an Unrestricted Subsidiary, in each case unless and until any of
20
the Subsidiaries referred to in the foregoing clauses (a), (b), (c) and (d)
shall, in accordance with the provisions of this Indenture, be designated by
Board Resolution as a Restricted Subsidiary and (ii) any Subsidiary a majority
of the Voting Stock of which shall at the time be owned directly or indirectly
by one or more Unrestricted Subsidiaries.
"U.S. Government Obligation" has the meaning specified in Section 12.04.
"Vice President", when used with respect to the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president."
"Voting Stock" means stock of the class or classes of any corporation having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of such corporation
(irrespective of whether or not at the time stock of any other class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency).
"Wholly-Owned Restricted Subsidiary" means any Restricted Subsidiary all of
the outstanding Funded Debt and capital stock of which, other than directors'
qualifying shares is owned by the Company and its other Wholly-owned
Restricted Subsidiaries.
Section 1.02. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee such certificates
and opinions as may be required under the Trust Indenture Act. Each such
certificate or opinion shall be given in the form of an Officers' Certificate,
if to be given by an officer of the Company, or an Opinion of Counsel, if to
be given by counsel, and shall comply with the requirements of the Trust
Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for certificates provided for
in Section 10.10) shall include,
(1) a statement that each individual signing such certificate or opinion has
read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
21
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Section 1.03. Form Of Documents Delivered To Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. Acts of Holders; Record Dates. (1) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders 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 shall become
effective when such instrument or instruments are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a
22
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(2) 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 shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(3) The ownership of Securities shall be proved by the Security Register.
(4) Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(5) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that
the Company may not set a record date for, and the provisions of this
paragraph shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any
Person be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date
such action is taken. Promptly after any record date is set pursuant to this
23
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.06.
(6) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
join in the giving or making of (i) any Notice of Default, (ii) any
declaration of acceleration referred to in Section 5.02, (iii) any request to
institute proceedings referred to in Section 5.07(2) or (iv) any direction
referred to in Section 5.12, in each case with respect to Securities of such
series. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of such series on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing
in this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Company's expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Company in
writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 1.06.
(7) With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of
the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the manner
set forth in Section 1.06, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the party hereto which set such record date shall be deemed
to have initially designated the 180th day after such record date as the
Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. Notwithstanding the foregoing,
no Expiration Date shall be later than the 180th day after the applicable
record date.
24
(8) Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard
to all or any part of the principal amount of such Security or by one or more
duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
Section 1.05. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.
Section 1.06. Notice To Holders; Waiver. Where this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-
class postage prepaid, to each 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 shall 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 shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice as provided
above, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
Section 1.07. Conflict With Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act
which is required under such Act to be a part of and govern this Indenture,
25
the latter provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
Section 1.08. Effect of Headings And Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.09. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 1.10. Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
Section 1.11. Benefits Of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.12. Governing Law. THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Section 1.13. Legal Holidays. 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 any Security which
specifically states that such provision shall apply in lieu of this Section))
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.
Section 1.14. No Adverse Interpretation of Other Agreements. This Indenture
may not be used to interpret another indenture, loan or debt agreement of the
Company or any Affiliate of the Company. No such indenture, loan or debt
agreement may be used to interpret this Indenture.
Section 1.15. No Recourse Against Others. No manager, director, officer,
employee or shareholder of the Company shall have any liability for any
obligation of the Company under the Securities of any series or the Indenture
or for any claim based on, in respect of or by reason of such obligations or
26
their creation. Each Holder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
ARTICLE 2
Security Forms
Section 2.01. Forms Generally. (a) The Securities of each series and
Guarantees to be attached thereto shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
authorization provided by 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 Depositary therefor or as may,
consistently herewith, be determined by the officers executing such Securities
and Guarantees as evidenced by their execution thereof. If the form of
Securities of any series is established by action taken pursuant to
authorization provided by a Board Resolution, a copy of the Board Resolution
together with an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by
Section 3.03 for the authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
In certain cases described elsewhere herein, the legends set forth in Section
2.04 may be omitted from Securities issued hereunder.
(b) (i) Securities of a series offered and sold in their initial distribution
in reliance on Regulation S shall be initially issued in the form of one or
more temporary Global Securities, in fully registered form without interest
coupons, substantially in the form of Security set forth in Sections 2.02 and
2.03, as the case may be, with such applicable legends as are provided for in
Section 2.02 and Section 2.04, as the case may be. Such Global Securities
shall be registered in the name of the Depositary or its nominee, and
deposited with the Trustee, at its New York offices, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided, for credit to the respective accounts at the Depositary
of the depositories for Euroclear Bank S.A./N.V., as operator of Euroclear and
for Clearstream, for credit to the respective accounts of owners of beneficial
interests in such Securities or to such other accounts as they may direct.
27
Until such time as the Restricted Period in respect of securities of a series
shall have terminated, such temporary Global Securities shall be referred to
herein as "Temporary Regulation S Global Securities". On or after the
termination of the Restricted Period, interests in any Temporary Regulation S
Global Security of a series shall be exchangeable for corresponding interests
in an unrestricted Regulation S Global Security of the same series (each a
"Regulation S Global Security") in fully registered form without interest
coupons, substantially in the form set forth in Sections 2.02 and 2.03, with
such applicable legends as are provided for in Section 2.02 and Section 2.04
and in accordance with the immediately following paragraph.
(ii) Interests in a Temporary Regulation S Global Security of a series may be
exchanged for interests in a Regulation S Global Security of the same series
only on or after the termination of the Restricted Period with respect to such
securities after delivery by a beneficial owner of an interest therein to
Euroclear or Clearstream of a written certification (an "Owner Securities
Certification") substantially in the form of Annex C-1 hereto, and upon
delivery by Euroclear or Clearstream to the Trustee of a written certification
(a "Depository Securities Certification") substantially in the form attached
hereto as Annex C-2. Upon receipt of such certification, the Trustee shall
exchange the portion of the Temporary Regulation S Global Security covered by
such certification for interests in a Regulation S Global Security.
Upon:
(A) the expiration of the Restricted Period,
(B) receipt by Euroclear or Clearstream, as the case may be, and the Paying
Agent of the certificates described in the preceding paragraph,
(C) receipt by the Depositary of
(1) written instructions given in accordance with the Applicable Procedures
from an Agent Member directing the Depositary to credit or cause to be
credited to a specified Agent Member's account a beneficial interest in the
Regulation S Global Security in a principal amount equal to that of the
beneficial interest in the Temporary Regulation S Global Security for which
the necessary certificates have been delivered, and
(2) a written order given in accordance with the Applicable Procedures
28
containing information regarding the account of the Agent Member, and the
Euroclear or Clearstream account for which such Agent Member's account is
held, to be credited with, and the account of the Agent Member to be debited
for, such beneficial interest, and
(D) receipt by the Trustee of notification from the Depositary of the
transactions described in (C) above,
the Trustee, as Security Registrar, shall instruct the Depositary to reduce
the principal amount of the Temporary Regulation S Global Security and to
increase the principal amount of the Regulation S Global Security, by the
principal amount of the beneficial interest in such Temporary Regulation S
Global Security to be so transferred, and to credit or cause to be credited to
the account of the Person specified in such instructions a beneficial interest
in the Regulation S Global Security having a principal amount equal to the
amount by which the principal amount of the Temporary Regulation S Global
Security was reduced upon such transfer. The aggregate principal amount of a
Regulation S Global Security of a series may be increased or decreased from
time to time by adjustments made on the records of the Trustee, as custodian
for the Depositary, in connection with a corresponding decrease or increase in
the aggregate principal amount, as hereinafter provided.
(iii) Until such time as the Restricted Period shall have terminated,
investors may hold interests in the Regulation S Temporary Global Security
only through Euroclear and Clearstream, unless delivery of such beneficial
interest upon transfer shall be made through a Restricted Global Security in
accordance with the certification requirements discussed below in Section
3.05(b)(v).
(c) Securities of a series offered and sold in their initial distribution in
reliance on Rule 144A shall be issued in the form of one or more Global
Securities (each, a "Restricted Global Security"), in fully registered form
without interest coupons, substantially in the form of Security set forth in
Sections 2.02 and 2.03 with such applicable legends as are provided for in
Section 2.02 and Section 2.04, except as otherwise permitted herein. Such
Global Securities shall be registered in the name of the Depositary or its
nominee and deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided, for credit to the respective accounts of owners of beneficial
interests in such Securities or to such other accounts as they may direct.
The aggregate principal amount of a Restricted Global Security of a series may
be increased or decreased from time to time by adjustments made on the records
of the Trustee, as custodian for the Depositary, in connection with a
corresponding decrease or increase in the aggregate principal amount, as
hereinafter provided.
29
(d) Securities that are to be offered and sold to Institutional Accredited
Investors that are not Qualified Institutional Buyers, sold in each case to an
Institutional Accredited Investor that has executed and delivered to the
Trustee, as Security Registrar, a letter substantially in the form of Annex E
hereto (an "Accredited Investor Letter"), shall be issued in definitive, fully
registered form without interest coupons, substantially in the form set forth
in Section 2.02 and Section 2.03, with such applicable legends as are provided
for in Section 2.02 and Section 2.04. The Securities sold to Institutional
Accredited Investors in accordance with the foregoing sentence (individually,
a "Certificated Security" and collectively, the "Certificated Securities")
shall not be issued in the form of Global Securities. Certificated Securities
acquired from the initial purchasers named in the Purchase Agreement in
respect of the Securities of such series may be transferred initially only to
Qualified Institutional Buyers in accordance with Rule 144A, to a transferee
who will acquire such security in reliance on Regulation S or pursuant to Rule
144 under the Securities Act, if available, and exchanged for interests in
Global Securities pursuant to Section 3.05(b)(vi)(1). Certificated Securities
shall be duly executed by the Company and authenticated by the Trustee as
provided herein, and shall be registered in the name of the Institutional
Accredited Investor purchasing such Security and shall bear the Restricted
Securities Legend.
Section 2.02. Form of Face of Security.
[Insert any legend as required by Section 2.04]
[Insert any legend required by the Internal Revenue Code and the regulations
thereunder.]
The May Department Stores Company
[Insert title of Securities]
No. [ ] $[ ]
The May Department Stores Company, a New York corporation (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 $[ ] Dollars on [ ], and to pay
interest thereon from [ ] or from the most recent Interest Payment Date to
which interest has been paid or as duly provided for, semi-annually on [ ]
and [ ] in each year, commencing [ ], at the rate of [ ]% per annum,
until the principal hereof is paid or made available for payment, [If Original
Securities are not also Registered Securities, then insert - provided,
however, that if (i) the Company has not filed a registration statement (the
"Exchange Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), to register a security substantially identical
30
to this Security (except that such Security shall not contain terms with
respect to the Special Interest payments described below or transfer
restrictions) pursuant to an exchange offer (the "Exchange Offer") within
[ ] days after the Issue Date of this Security, or (ii) the Exchange
Registration Statement is not declared effective on or prior to the date that
is [ ] days after the Issue Date of this Security, or (iii) the Exchange
Offer has not been completed (unless applicable law or interpretations of the
staff of the Securities and Exchange Commission do not permit the Company to
effect the Exchange Offer, as set forth in the Registration Rights Agreement)
or, if required pursuant to the Registration Rights Agreement, a registration
statement registering this Security for resale (a "Resale Registration
Statement") is not declared effective, in each case, on or prior to the date
that is [ ] days after the Issue Date of this Security or (iv) an Exchange
Registration Statement or Resale Registration Statement, as applicable, is
declared effective but thereafter ceases to be effective or usable during the
time periods set forth in the Registration Rights Agreement, in each case of
clause (i), (ii), (iii) or (iv), upon the terms and conditions set forth in
the Registration Rights Agreement (each such event referred to in clause (i),
(ii), (iii) or (iv), a "Registration Default"), to the extent required
pursuant thereto, then Special Interest shall accrue (in addition to the
stated interest on the Securities) at an additional annual rate of [ ]%
immediately following the Registration Default until the Registration Default
is cured by meeting the applicable requirement in clause (i), (ii), (iii) or
(iv), as the case may be. Upon the cure of all Registration Defaults, the
annual rate of interest shall return to the rate on the face hereof.
Notwithstanding the existence of more than one Registration Default, in no
event shall Special Interest accrue at an annual rate in excess of 0.25%.
Interest accruing as a result of a Registration Default is referred to herein
as "Special Interest."
Whenever in this Security or in the Indenture there is a reference, in any
context, to the payment of the principal of, premium, if any, or interest on,
or in respect of, any Security, such mention shall be deemed to include
mention of the payment of Special Interest (if applicable) payable as
described in the preceding paragraph to the extent that, in such context,
Special Interest is, was or would be payable in respect of such Security and
express mention of the payment of Special Interest (if applicable) in any
provisions of this Security shall not be construed as excluding Special
Interest in those provisions of this Security where such express mention is
not made.
Any accrued and unpaid interest (including Special Interest) on this Security
upon the issuance of an Exchange Security (as defined in the Indenture) in
exchange for this Security shall cease to be payable to the Holder hereof but
such accrued and unpaid interest (including Special Interest) shall be payable
on the next Interest Payment Date for such Exchange Security to the Holder
thereof on the related Regular Record Date.]
31
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date shall, 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 shall 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 shall 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
shall be given to Holders of Securities of this series not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which 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.
Payment of the principal of (and premium, if any) and interest on this
Security shall be made at the office or agency of the Company maintained for
that purpose in St. Louis, Missouri, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set forth
on the reverse hereof, which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
32
In Witness Whereof, the Company, has caused this instrument to be duly executed
under its corporate seal.
Dated:
THE MAY DEPARTMENT STORES
COMPANY, a New York corporation
By:
By:
Attest:
Section 2.03. Form of Reverse of Security. 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 July 20, 2004 (herein called the "Indenture", which
term shall have the meaning assigned to it in such instrument), among the
Company, the Guarantor and X.X. Xxxxxx Trust Company, National Association, as
Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), and reference is hereby made to the Indenture
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. [If applicable, insert - This Security is one of
the series designated on the face hereof, limited in aggregate principal
amount to $____________; provided that the Company may from time to time,
without notice to or the consent of the Holders of Securities, create and
issue further Securities of this Series (the "Additional Securities") having
the same terms and ranking equally and ratably with the Securities in all
respects, or in all respects except for the payment of interest accruing prior
to the Issue Date or except for the first payment of interest following the
Issue Date of such Additional Securities. Any Additional Securities will be
consolidated and form a single series with the Securities and shall have the
same terms as to status, redemption or otherwise as the Securities.]
The Securities of this series are subject to redemption upon not less than 30
days' but no more than 60 days' notice by mail, at any time, as a whole or in
part, at the election of the Company, at a Redemption Price equal to the
greater of (1) 100 percent of the principal amount of the Securities to be
redeemed and (2) the sum of the present values of the remaining scheduled
payments of principal and interest thereon (exclusive of interest accrued to
33
that Redemption Date) discounted to that Redemption Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus [ ] basis points, plus, in either case, accrued and
unpaid interest and additional interest, if any, on the principal amount being
redeemed to that Redemption Date; provided that installments of interest on
the Securities which are then due and payable on an Interest Payment Date
falling on or prior to the relevant Redemption Date shall be payable to the
Holders of those Securities, registered as such at the close of business on
the relevant Record Date. If less than all the Securities are to be redeemed
at the Company's option, the Trustee shall select, in such manner as it shall
deem fair and appropriate, the Securities to be redeemed in whole or in part.
[If applicable, insert- The Securities shall be mandatorily redeemable, in
whole but not in part, on or before August 31, 2004, if the Company does not
complete the Xxxxxxxx Xxxxx'x Transaction prior to that date. The Company
will give the Holders of the Securities at least twenty days' prior written
notice of the Redemption Date for a redemption under this option. The
Securities will be redeemed at a redemption price of 101% of the principal
amount of the Securities to be redeemed, plus accrued and unpaid interest, if
any, and any other amounts due to the Redemption Date.]
[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 shall be
issued in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or 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 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.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of 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 shall be conclusive and binding upon such Holder and
34
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 shall 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 the Trustee shall
have failed to institute any such proceeding, for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall not 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 shall 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 and
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and 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, shall be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of [if other than a Certificated Security, then
insert - $1,000 and any integral multiple thereof] [if a Certificated
Security, then insert - $250,000 and any integral multiple of $1,000 in excess
thereof]. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
35
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 shall be made to a Holder 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 be overdue, and none of the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
This Security shall be governed by and construed in accordance with the law of
the State of New York.
Section 2.04. Form of Legend for Securities. Unless otherwise specified as
contemplated by Section 3.01 for the Securities evidenced thereby, every
Security that is a Global Security, a Restricted Security or a Regulation S
Security authenticated and delivered hereunder shall bear one or more of the
appropriate legends in substantially the following forms, as appropriate:
[If the Security is a Restricted Security or a Temporary Regulation S Security,
then insert -
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR"), OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT,
WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE SECURITIES ACT AS IN
EFFECT ON THE DATE OF THE TRANSFER OF THIS SECURITY, RESELL OR OTHERWISE
36
TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER THEREOF OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES
IN A PRINCIPAL AMOUNT OF NOT LESS THAN $250,000 TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM
OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND, IF REQUESTED BY THE
ISSUER, AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER THEREOF TO THE
EFFECT THAT THE TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
(D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k)
UNDER THE SECURITIES ACT AFTER THE ORIGINAL ISSUANCE OF THE SECURITIES, THE
HOLDER MUST TRANSFER AND SUBMIT THIS SECURITY TO THE TRUSTEE. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS PROVISIONS REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS SECURITY IN VIOLATION OF THE FOREGOING RESTRICTIONS."]
[Include if Security is a Temporary Regulation S Global Security - THIS SECURITY
IS A TEMPORARY REGULATION S GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
REFERRED TO HEREINAFTER. EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN SECTION 3.04
OF THE INDENTURE, NO TRANSFER OR EXCHANGE OF AN INTEREST IN THIS TEMPORARY
GLOBAL SECURITY MAY BE MADE FOR AN INTEREST IN THE RESTRICTED GLOBAL SECURITY.
NO EXCHANGE OF AN INTEREST IN THIS TEMPORARY GLOBAL SECURITY MAY BE MADE FOR AN
37
INTEREST IN THE REGULATION S GLOBAL SECURITY EXCEPT ON OR AFTER THE TERMINATION
OF THE DISTRIBUTION COMPLIANCE PERIOD AND UPON DELIVERY OF THE OWNER SECURITIES
CERTIFICATION AND THE DEPOSITORY SECURITIES CERTIFICATION RELATING TO SUCH
INTEREST IN ACCORDANCE WITH THE TERMS OF THE INDENTURE.]
[If the Security is a Regulation S Security, then insert - THIS SECURITY HAS NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, OR DELIVERED IN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS THIS
SECURITY IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
[If the Security is a Global Security, then insert - 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 THEREOF. THIS SECURITY MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER
OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If the Security is a Global Security and DTC is to be the Depositary therefor,
then insert - UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[If Certificated Securities, then insert - THIS SECURITY WILL NOT BE ACCEPTED IN
EXCHANGE FOR A BENEFICIAL INTEREST IN A GLOBAL SECURITY UNLESS THE HOLDER OF
THIS SECURITY, SUBSEQUENT TO SUCH EXCHANGE, WILL HOLD A MINIMUM OF AGGREGATE
BENEFICIAL INTEREST IN SUCH GLOBAL SECURITY OF AT LEAST TWO HUNDRED AND FIFTY
THOUSAND DOLLARS ($250,000).]
38
Section 2.05. Form of Trustee's Certificate of Authentication. The Trustee's
certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
X.X. Xxxxxx Trust Company, National Association,
As Trustee
By
Authorized Officer
Section 2.06. Form of Guarantee. The Guarantee shall be in substantially the
following form:
For good and valuable consideration, receipt of which is acknowledged, and
intending to be legally bound, the Guarantor hereby unconditionally guarantees
the due and punctual payment of the principal of, premium, if any, and interest
on, and any Redemption Price with respect to this [Note or Debenture], when and
as the same shall become due and payable, whether at maturity, upon acceleration
or redemption or otherwise, in accordance with the terms of this [Note or
Debenture] and the Indenture.
THE MAY DEPARTMENT STORES COMPANY
a Delaware corporation
[Seal]
By
Authorized Officer
Attest:
Authorized Officer
39
ARTICLE 3
The Securities
Section 3.01 . Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established
in or pursuant to authorization provided in a Board Resolution and, subject to
Section 3.03, set forth, or determined in the manner provided, in an Officers'
Certificate of the Company or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section
3.04, 3.05, 3.06, 9.06 or 11.07);
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal (and premium, if any) of any
Securities of the series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable, the
Regular Record Date for any such interest payable on any Interest Payment Date
and the basis on which interest on the Securities of the series shall be
calculated if other than on the basis of a 360-day year of twelve 30-day months;
(6) the place or places where the principal of and any premium and interest on
any Securities of the series shall be payable;
(7) the period or periods within which, or the date or dates on which, the
price or prices at which and the terms and conditions upon which any Securities
of the series may be redeemed, in whole or in part, at the option of the
Company;
40
(8) if a Certificated Security and denominations will be other than of $250,000
and integral multiples of $1,000 in excess thereof, the denominations in which
Certified Securities of the series shall be issuable; or if other than a
Certificated Security and denominations will be other than of $1,000 and any
integral multiple thereof, the denominations in which any such Securities of the
series shall be issuable;
(10) if the amount of principal of or any premium or interest on any Securities
of the series may be determined with reference to an index or pursuant to a
formula, the manner in which such amounts shall be determined;
(11) if the principal of or any premium or interest on any Securities of the
series is to be payable, at the election of the Company or the Holder thereof,
in one or more currencies or currency units other than that or those in which
such Securities are stated to be payable, the currency, currencies or currency
units in which the principal of or any premium or interest on such Securities as
to which such election is made shall be payable, the periods within which and
the terms and conditions upon which such election is to be made and the amount
so payable (or the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
(14) if the principal amount payable at the Stated Maturity of any Securities
of the series will not be determinable as of any one or more dates prior to the
Stated Maturity, the amount which shall be deemed to be the principal amount of
such Securities as of any such date for any purpose thereunder or hereunder,
including the principal amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be deemed to be
Outstanding as of any date prior to the Stated Maturity (or, in any such case,
the manner in which such amount deemed to be the principal amount shall be
determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 12.02 or Section 12.03
or both such Sections and, if other than by a Board Resolution, the manner in
which any election by the Company to defease such Securities shall be evidenced;
(16) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such case,
41
the respective Depositaries for such Global Securities, which shall be DTC if no
Depositary is specified, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of that set forth in
Section 2.04, whether such Global Securities shall be in the form of Restricted
Securities or Regulation S Securities and any circumstances in addition to or in
lieu of those set forth in Clause (2) of the last paragraph of Section 3.05(a)
in which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in whole or in
part may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(17) any deletions from, modifications of or additions to the Events of Default
which applies to any Securities of the series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the principal
amount thereof due and payable pursuant to Section 5.02;
(18) whether and under what circumstances the Company will pay additional
amounts on the Securities of the series held by a person who is not a U.S.
person in respect of taxes or similar charges withheld or deducted and, if so,
whether the Company will have the option to redeem such Securities rather than
pay such additional amounts;
(19) the obligation, if any, of the Company to permit the conversion or
exchange of the Securities of any series into other securities (whether or not
issued by, or the obligation of, the Company), and the terms and conditions upon
which such conversion or exchange shall be effected (including, without
limitation, the initial conversion or exchange price or rate, the conversion or
exchange period and any other provisions in addition to or in lieu of those set
forth in this Indenture relative to such obligation;
(20) any deletions from, modifications of or additions to the covenants set
forth in Article Ten which applies to Securities of the series; and
(21) any other terms of the series (which terms shall not be inconsistent with
the provisions of this Indenture, except as permitted by Section 9.01(5)).
All Securities and Guarantees of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to authorization provided in the Board Resolution referred to above and (subject
to Section 3.03) set forth, or determined in the manner provided, in the
42
Officers' Certificate referred to above or in any such indenture supplemental
hereto.
If any of the terms of the series are established by action taken pursuant to
authorization provided by a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
Section 3.02 . Denominations. The Securities of each series shall be issuable
only in registered form without coupons and only in such denominations as shall
be specified as contemplated by Section 3.01. In the absence of any such
specified denomination with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 3.03 . Execution, Authentication, Delivery and Dating. The Securities
shall be executed on behalf of the Company and the Guarantee endorsed xxxxxxx
shall be executed on behalf of the Guarantor, respectively, by their respective
Presidents, one of their respective Vice Presidents or Secretaries, under their
respective corporate seals reproduced thereon attested by the signature of their
respective Secretaries or one of their respective Assistant Secretaries or
Treasurers or one of their respective Assistant Treasurers. The signature of
any of these officers on the Securities or Guarantees may be manual or
facsimile.
Securities and Guarantees bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company and the
Guarantor shall bind the Company and the Guarantor, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities and Guarantees or did not hold
such offices at the date of such Securities and Guarantees.
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, and with Guarantees endorsed thereon executed by the Guarantor, to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities of the series have been established by or pursuant to
authorization provided by one or more Board Resolutions as permitted by Sections
2.01 and 3.01, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon, an Opinion of Counsel stating,
43
(1) if the form of such Securities has been established by or pursuant to
authorization provided by Board Resolution as permitted by Section 2.01, that
such form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by or pursuant to
authorization provided by Board Resolution as permitted by Section 3.01, that
such terms have been established in conformity with the provisions of this
Indenture; and
(3) 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 legally binding obligations
of the Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
The Trustee shall have the right to decline to authenticate and deliver such
Securities if the Trustee, being advised by counsel, determines that such action
may not lawfully be taken or if the Trustee in good faith by its board of
directors or trustee and/or Responsible Officers shall determine that such
action would expose the Trustee to personal liability to existing Holders or
would adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
The Trustee shall not be required to authenticate Securities denominated in a
coin or currency (or unit including a coin or currency) other than that of the
United States if the Trustee reasonably determines that such Securities impose
duties or obligations on the Trustee which the Trustee is not able or reasonably
willing to accept; provided that the Trustee, upon a Company Request, will
resign as Trustee with respect to Securities of any series as to which such a
determination is made, prior to the issuance of such Securities, and will comply
with the request of the Company to execute and deliver a supplemental indenture
appointing a successor Trustee pursuant to Section 9.01.
If all of the Securities of a series are not to be originally issued at the same
time, then the documents required to be delivered pursuant to this Section 3.03
must be delivered only once, prior to the authentication and delivery of the
first Security of such series; provided, however, that any subsequent request by
the Company to the Trustee to authenticate Securities of such series upon
original issuance shall constitute a representation and warranty by the Company
that, as of the date of such request, the statements made in the Opinion of
Counsel delivered pursuant to this Section 3.03 shall be true and correct as if
made on such date.
44
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will materially and adversely affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture.
Notwithstanding the provisions of Section 3.01 and of the preceding paragraph,
if all Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 3.01 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the 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.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
Section 3.04 . Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities, in any authorized
denomination, substantially of the tenor and form of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company shall cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
one or more definitive Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
45
Section 3.05 . Registration, Registration Of Transfer And Exchange; Certain
Transfers And Exchanges. (a) Registration, Registration of Transfer and
Exchange Generally. The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of 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.
Upon surrender for registration of transfer of any Security of a series at the
office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and
aggregate principal amount.
Subject to this (a) and Section 3.05(b), 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 like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
Successive registrations and registrations of transfers and exchanges as afore-
said may be made from time to time as desired, and each such registration shall
be noted on the Security Register. No service charge shall be made for any
registration of transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not
involving any transfer.
46
If the Securities of any series (or of any series and specified tenor) are to
be redeemed, the Company shall not be required (A) to issue, register the
transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening
of 15 days before the day of the mailing of a notice of redemption of any such
Securities selected for redemption under Section 11.03 and ending at the close
of business on the day of such mailing, or (B) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefore, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture or the Securities,
no Global Security of any series may be exchanged in whole or in part for
Securities of that series registered, and no transfer of a Global Security of
a series in whole or in part may be registered, in the name of any Person other
than the Depositary for such Global Security or a nominee thereof unless (A)
the Depositary (i) has notified the Company that it is unwilling or unable to
continue as Depositary for the Global Security and a successor Depositary has
not been appointed by the Company within 90 days of receipt by the Company of
such notification or (ii) has ceased to be a clearing agency registered under
the Exchange Act and a successor Depositary has not been appointed by the
Company within 90 days after the Company became aware of such cessation,
(B) the Company, at its option, notifies the Trustee in writing that it elects
to cause the issuance of Certificated Securities or (C) there shall have
occurred and be continuing an Event of Default with respect to any Global
Security. Any Global Security of a series exchanged pursuant to clause
(A) above shall be so exchanged in whole and not in part and any Global
Security of a series exchanged pursuant to clause (B) or (C) above may be
exchanged in whole or from time to time in part as directed by the Company or
the Trustee. In addition, beneficial interests in Global Securities of a
series may be exchanged for non-global, Certificated Securities of such series
upon request by or on behalf of the Depositary upon not less than 60 days'
prior written notice to the Trustee, with a copy of such notice delivered to
the Company.
47
(3) Securities issued in exchange for a Global Security of a series or any
portion thereof pursuant to clause (2) above shall be issued in definitive,
registered form without interest coupons, shall have an aggregate principal
amount equal to that of such Global Security or portion thereof to be so
exchanged, shall be registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear any legends
required hereunder. Any Global Security of a series to be exchanged in whole
shall be surrendered by the Depositary to the Trustee, as Security Registrar.
With regard to any Global Security of a series to be exchanged in part, either
such Global Security shall be so surrendered for exchange or, if the Trustee is
acting as custodian for the Depositary or its nominee with respect to such
Global Security, the principal amount thereof shall be reduced by an amount
equal to the portion thereof to be so exchanged by means of an appropriate
adjustment made on the records of the Trustee. Upon any such surrender or
adjustment, the Trustee shall authenticate and make available for delivery a
Security of such series issuable on such exchange to or upon the written order
of the Depositary or an authorized representative thereof.
(4) In the event of the occurrence of any of the events specified in clause
(2) above, the Company shall promptly make available to the Trustee a
reasonable supply of certificated Securities in definitive, registered form
without interest coupons.
(5) No Agent Members nor any other Persons on whose behalf Agent Members may
act (including Euroclear and Clearstream and account holders and participants
therein and any holder or owner of any beneficial interest in any Global
Security) shall have any rights under the Indenture with respect to any Global
Security, or under any Global Security, and the Depositary or such nominee, as
the case may be, may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner and holder of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as the case may be,
or impair, as between the Depositary, its Agent Members and any other person on
whose behalf an Agent Member may act, the operation of customary practices of
such Persons governing the exercise of the rights of a holder of any Security.
Neither the Company, the Trustee nor the Securities Registrar shall have any
liability in respect of any transfers effected by the Depositary or by any
Agent Member or any other Person that acquires a beneficial interest in a
Security. Neither the Trustee nor the Depositary shall have any duty or
obligation to monitor compliance with any restrictions on transfer with respect
to the transfer of any interest in
48
the Securities (including transfers between Agent Members or any such other
Persons that acquire a beneficial interest in a Security) other than to require
delivery of any documents or certificates specifically required by this
Indenture.
(b) Certain Transfers and Exchanges. Notwithstanding any other provision of
this Indenture or the Securities, transfers and exchanges of Securities and
beneficial interests in a Global Security of the kinds specified in this Section
3.05(b) shall be made only in accordance with this Section 3.05(b).
(i) Limitation on Transfers of a Global Security. A Global Security of a
series may not be transferred, in whole or in part, to any Person other than DTC
or a nominee thereof, and no such transfer to any such other Person may be
registered; provided that this clause (i) shall not prohibit any transfer of a
Security of a series that is issued in exchange for a Global Security of that
series but is not itself a Global Security pursuant to (a). No transfer of a
Security of a series to any Person shall be effective under this Indenture or
the Securities unless and until such Security has been registered in the name of
such Person. Nothing in this Section 3.05(b)(i) shall prohibit or render
ineffective any transfer of a beneficial interest in a Global Security effected
in accordance with the other provisions of this Section 3.05(b).
(ii) Temporary Regulation S Global Security. If the owner of a beneficial
interest in a Temporary Regulation S Global Security of a series wishes at any
time to transfer such interest to a Person who wishes to take delivery thereof
in the form of a beneficial interest in such Temporary Regulation S Global
Security, such transfer may be effected, subject to the rules and procedures of
the Depositary, Euroclear and Clear-stream, in each case to the extent
applicable and as in effect from time to time (the "Applicable Procedures"),
only in accordance with this Section 3.05(b)(ii). Upon delivery (a) by a
beneficial owner of an interest in a Temporary Regulation S Global Security to
Euroclear or Clearstream, as the case may be, of an Owner Securities
Certification substantially in the form of Annex C-1 hereto, (b) by the
transferee of such beneficial interest in the Temporary Regulation S Global
Security to Euroclear or Clearstream, as the case may be, of a written
certification (a "Transferee Securities Certification") substantially in the
form of Annex C-3 hereto and (c) by Euroclear or Clear-stream, as the case may
be, to the Trustee, as Security Registrar, of a Depository Securities
Certification substantially in the form of Annex C-2 hereto, the Trustee may
direct either Euroclear or Clearstream, as the case may be, to reflect on its
records the transfer of a beneficial interest in the Temporary Regulation S
Global Security from the beneficial owner providing the Owner Securities
Certification to the Person providing the Transferee Securities Certification.
49
(iii) Restricted Global Security to Temporary Regulation S Global Security.
If the holder of a beneficial interest in the Restricted Global Security wishes
at any time to transfer such interest to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the Temporary Regulation S
Global Security, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with the provisions of this Section 3.05(b)
(iii). Upon receipt by the Trustee, as Security Registrar, of (A) written
instructions given in accordance with the Applicable Procedures from an Agent
Member directing the Trustee to credit or cause to be credited to a specified
Agent Member's account a beneficial interest in the Temporary Regulation S
Global Security in a principal amount equal to that of the beneficial interest
in the Restricted Global Security to be so transferred, (B) a written order
given in accordance with the Applicable Procedures containing information
regarding the account of the Agent Member (and the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of the Agent
Member to be debited for, such beneficial interest and (C) a certificate in
substantially the form set forth in Annex A-1 given by the holder of such bene-
ficial interest, the Trustee, as Security Registrar, shall instruct the
Depositary to reduce the principal amount of the applicable Restricted Global
Security, and to increase the principal amount of the Temporary Regulation S
Global Security, by the principal amount of the beneficial interest in the
Restricted Global Security to be so transferred, and to credit or cause to be
credited to the account of the Person specified in such instructions (which
shall be the Agent Member for Euroclear or Clearstream or both, as the case may
be) a beneficial interest in the Temporary Regulation S Global Security having
a principal amount equal to the amount by which the principal amount of the
Restricted Global Security was reduced upon such transfer.
(iv) Restricted Global Security to Regulation S Global Security. If the holder
of a beneficial interest in a Restricted Global Security wishes at any time to
transfer such interest to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Regulation S Global Security, such transfer
may be effected, subject to the Applicable Procedures, only in accordance with
this Section 3.05(b)(iv). Upon receipt by the Trustee, as Security Registrar,
of (A) written instructions given in accordance with the Applicable Procedures
from an Agent Member directing the Trustee to credit or cause to be credited to
a specified Agent Member's account a beneficial interest in a Regulation S
Global Security in a principal amount equal to that of the beneficial interest
in the Restricted Global Security to be so transferred, (B) a written order
given in accordance with the Applicable Procedures containing information
regarding the account of the Agent Member (and, if
50
applicable, the Euroclear or Clearstream account, as the case may be) to be
credited with, and the account of the Agent Member to be debited for, such
beneficial interest and (C) a certificate in substantially the form set forth
in Annex A-2 given by the holder of such beneficial interest, the Trustee, as
Security Registrar, shall instruct the Depositary to reduce the principal
amount of the applicable Restricted Global Security, and to increase the
principal amount of the Regulation S Global Security, by the principal amount
of the beneficial interest in the Restricted Global Security to be so
transferred, and to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Regulation S Global
Security having a principal amount equal to the amount by which the principal
amount of the Restricted Global Security was reduced upon such transfer.
(v) Temporary Regulation S Global Security or Regulation S Global Security to
Restricted Global Security. If the holder of a beneficial interest in a
Temporary Regulation S Global Security or a Regulation S Global Security wishes
at any time to transfer such interest to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the Restricted Global Security,
such transfer may be effected, subject to the Applicable Procedures, only in
accordance with this Section 3.05(b)(v). Upon receipt by the Trustee, as
Security Registrar, of (A) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the Trustee to credit or
cause to be credited to a specified Agent Member's account a beneficial interest
in a Restricted Global Security in a principal amount equal to that of the
beneficial interest in the Temporary Regulation S Global Security or the
Regulation S Global Security to be so transferred, (B) a written order given in
accordance with the Applicable Procedures containing information regarding the
account of the Agent Member to be credited with, and the account of the Agent
Member (and, if applicable, the Euroclear or Clearstream account, as the case
may be) to be debited for, such beneficial interest and (C) a certificate in
substantially the form set forth in Annex B given by the owner of such
beneficial interest, the Trustee, as Security Registrar, shall instruct the
Depositary to reduce the principal amount of the applicable Temporary Regulation
S Global Security or the Regulation S Global Security, as the case may be, and
to increase the principal amount of the Restricted Global Security, by the
principal amount of the beneficial interest in the Temporary Regulation S Global
Security or the Regulation S Global Security to be so transferred, and to credit
or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Restricted Global Security having a
principal amount equal to the amount by which the principal amount of the
Temporary
51
Regulation S Global Security or the Regulation S Global Security, as the case
may be, was reduced upon such transfer.
(vi) Non-Global Restricted Security to Global Security. If the Holder of a
Restricted Security (other than a Global Security) wishes at any time to
transfer all or a portion of such Security to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the Restricted Global
Security, the Temporary Regulation S Global Security or the Regulation S Global
Security, in each case, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with this (vi). Upon receipt by (1) the
Depositary of written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Depositary to credit or cause to
be credited to a specified Agent Member's account a beneficial interest in the
Restricted Global Security, the Temporary Regulation S Global Security or the
Regulation S Global Security, as the case may be, in a specified principal
amount equal to the principal amount of the Restricted Security (or portion
thereof) to be so transferred, a written order given in accordance with the
Applicable Procedures containing information regarding the account of the Agent
Member (and, in the case of any transfer pursuant to Regulation S, the
Euroclear and Clearstream account for which such Agent Member's account is
held, or if such account is held for Euroclear or Clearstream, the Euroclear or
Clearstream account, as the case may be) to be credited with such beneficial
interest, and an appropriately completed certificate substantially in the form
set forth in Annex D-1 hereto, if the specified account is to be credited with
a beneficial interest in a Restricted Global Security, or Annex D-2 hereto, if
the specified account is to be credited with a beneficial interest in the
Temporary Regulation S Global Security or the Regulation S Global Security,
given by the holder of such beneficial interest, and (2) the Trustee of (A) the
Restricted Security to be so transferred, (B) the notification from the
Depositary of the transaction described in (1) above and (C) the certificate
described in (1)(C) above, the Trustee, as Security Registrar, shall cancel
such Restricted Security (and issue a new Security in respect of any
untransferred portion thereof) as provided in (a) and increase the principal
amount of the Restricted Global Security, Temporary Regulation S Global
Security or Regulation S Global Security, as the case may be, by the specified
principal amount as provided in Section 3.05(b)(iii).
The Trustee shall not be required to accept for such registration of transfer
or exchange any Restricted Security unless the Trustee and the Company are
satisfied that such transfer or exchange is being effected in compliance with
the restrictions on transfer as set forth in this Indenture and in such
Security. In addition, in connection with a transfer of a Certificated
Security by an Institutional Accredited Investor, such Institutional
Accredited Investor shall be required, prior to such transfer, to furnish to
52
the Company and the Trustee such certifications, legal opinions or other
information as they or either of them may reasonably require to confirm that
such transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act.
(vii) Other Exchanges. (1) In the event that a Global Security or any portion
thereof is exchanged for Securities other than Global Securities, such other
Securities may in turn be exchanged (on transfer or otherwise) for Securities
that are not Global Securities or for beneficial interests in a Global Security
(if any is then outstanding) only in accordance with such procedures, which
shall be substantially consistent with the provisions of clauses (i) through
(vi) above and (viii) below (including the certification requirements intended
to insure that transfers and exchanges of beneficial interests in a Global
Security comply with Rule 144A, Rule 144 (if available) or Regulation S, as the
case may be) and any Applicable Procedures, as may be from time to time adopted
by the Company and the Trustee; provided that except as permitted in (3) hereof,
no beneficial interest in a Temporary Regulation S Global Security shall be ex-
changeable for a definitive Security until the expiration of the Restricted
Period and then only if the certifications described in Section 2.01 shall have
been provided in respect of such interest.
(2) Subject to Section 2.01(d), in connection with a transfer of a Restricted
Security or of an interest therein to an Institutional Accredited Investor,
such Institutional Accredited Investor shall be required, prior to such
transfer, to furnish to the Company and the Trustee, an appropriately completed
certificate substantially in the form of Annex E and such other certifications,
legal opinions or other information as they or either of them may reasonably
require to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act; provided, however, that the purchaser of a Certificated
Security directly from the initial purchaser thereof named as such in the
Purchase Agreement in respect of the securities of such series may, so long as
such security is a Restricted Security, transfer such security only in
accordance with clause (vi) above.
(3) Notwithstanding any other provision of this Section 3.05, an initial
purchaser named as such in the Purchase Agreement in respect of the Securities
of a series may exchange beneficial interests in the Temporary Regulation S
Global Securities of that series held by it for one or more Restricted
Securities of that series (including an interest in the Restricted Global
53
Security of that series) upon delivery by such initial purchaser of
instructions for such exchange substantially in the form of Annex F. Upon
receipt of the instruction described in the preceding sentence, the Trustee
shall instruct the Depositary to reduce the principal amount of a Temporary
Regulation S Global Security by the principal amount of the beneficial interest
in such Temporary Regulation S Global Security to be so transferred and either
(A) the Trustee shall instruct the Depositary to increase the principal amount
of the Restricted Global Security and credit or cause to be credited to the
account of such initial purchaser a beneficial interest in such Restricted
Global Security having a principal amount equal to the amount by which the
principal amount of the Temporary Regulation S Global Security was reduced upon
such transfer or (B) authenticate and deliver one or more Restricted Securities
in definitive form and in the aggregate principal amount of the beneficial
interest in the Temporary Regulation S Global Security to be so transferred,
pursuant to the instructions described in the first sentence of this paragraph.
(viii) Interests in Temporary Regulation S Global Security to be Held Through
Euroclear or Clearstream. Until the termination of the Restricted Period,
interests in the Temporary Regulation S Global Securities may be held only
through Agent Members acting for and on behalf of Euroclear and Clearstream
provided that this clause (viii) shall not prohibit any transfer in accordance
with (v) hereof.
(ix) In addition to the foregoing, the Trustee, as Security Registrar, shall
effect and register, upon receipt of a written request from the Company to do
so, a transfer not otherwise permitted by this Section 3.05(b), such
registration to be done in accordance with the otherwise applicable provisions
of this Section 3.05, upon the furnishing by the proposed transferor or
transferee of a written opinion of counsel (which opinion and counsel are
satisfactory to the Company and the Trustee) to the effect that, and such other
certifications or information as the Company or the Trustee may require to
confirm that, the proposed transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act. The Company may require such transfer to be effected by the
issuance of Certificated Securities.
(c) Securities Act Legends. Restricted Securities and their Successor
Securities shall bear the legends required by Section 2.02 and Section 2.04,
subject to the following:
54
(i) subject to the following Clauses of this Section 3.05(c), a Security of a
series or any portion thereof which is exchanged, upon transfer or otherwise,
for a Global Security of that series or any portion thereof shall bear the
Securities Act Legend borne by such Global Security while represented thereby;
(ii) subject to the following Clauses of this Section 3.05(c), a new Security
of a series which is not a Global Security and is issued in exchange for
another Security of that series (including a Global Security) or any portion
thereof, upon transfer or otherwise, shall bear the Securities Act Legend borne
by such other Security, provided that, if such new Security is required
pursuant to (b)(v) to be issued in the form of a Restricted Security, it shall
bear a Restricted Securities Legend and, if such new Security is so required to
be issued in the form of a Regulation S Security, it shall bear a Regulation S
Legend;
(iii) Registered Securities and Regulation S Securities that are not Temporary
Regulations S Securities shall not bear a Securities Act Legend;
(iv) at any time after the Securities of a series may be freely transferred
without registration under the Securities Act or without being subject to
transfer restrictions pursuant to the Securities Act, a new Security of that
series which does not bear a Securities Act Legend may be issued in exchange
for or in lieu of a Security of that series (other than a Global Security) or
any portion thereof which bears such a legend if the Trustee has received an
Unrestricted Securities Certificate, satisfactory to the Trustee and duly
executed by the Holder of such legended Security or his attorney duly
authorized in writing, and after such date and receipt of such certificate, the
Trustee shall authenticate and deliver such a new Security in exchange for or
in lieu of such other Security as provided in this Article Three;
(v) a new Security of a series which does not bear a Securities Act Legend may
be issued in exchange for or in lieu of a Security of that series (other than a
Global Security) or any portion thereof which bears such a legend if, in the
Company's judgment, placing such a legend upon such new Security is not
necessary to ensure compliance with the registration requirements of the
Securities Act, and the Trustee, at the direction of the Company, shall
authenticate and deliver such a new Security as provided in this Article Three;
and
(vi) notwithstanding the foregoing provisions of this Section 3.05(c), a
Successor Security of a Security of a series that does not bear a particular
form of Securities Act Legend shall not bear such form of legend unless the
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Company has reasonable cause to believe that such Successor Security is a
"restricted security" within the meaning of Rule 144 under the Securities Act,
in which case the Trustee, at the direction of the Company, shall authenticate
and deliver a new Security of that series bearing a Restricted Securities
Legend in exchange for such Successor Security as provided in this Article
Three.
Section 3.06 . Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall 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.
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 shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its Guarantee issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company and the Guarantor,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their Guarantees duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
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Section 3.07 . Payment of Interest; Interest Rights Preserved. Except as
otherwise provided as contemplated by Section 3.01 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 shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at the Company's election
in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefore to be given to each Holder of Securities of such series in the manner
set forth in Section 1.06, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities
of any series in any other lawful manner not inconsistent with the requirements
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of any securities exchange on which such Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
At the option of the Company, interest on Registered Securities of any series
that bear interest may be paid (i) by mailing a check to the address of the
person entitled thereto as such address shall appear in the Security Register
for (ii) by wire transfer to an account maintained by the person entitled
thereto as specified in the applicable Security Register.
Notwithstanding the above, except as otherwise specified with respect to a
series of Securities in accordance with the provisions of Section 3.01, a
Holder of $10,000,000 or more in aggregate principal amount of Securities of
the same series having the same Interest Payment Date shall be entitled to
receive payments of interest by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received by the Trustee on or
before the Regular Record Date immediately preceding the applicable Interest
Payment Date.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Section 3.08 . Persons Deemed Owners. Prior to due presentment of a Security
for registration of transfer, the Company, the Guarantor, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
3.07) interest on such Security and for all other purposes whatsoever, whether
or not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 3.09 . Cancellation. All Securities and Guarantees surrendered for
payment, redemption, registration of transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities shall be destroyed by the Trustee and a certificate evidencing such
destruction shall be delivered to the Company upon request.
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Section 3.10 . Computation of Interest. Except as otherwise specified as
contemplated by Section 3.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE 4
Satisfaction and Discharge
Section 4.01 . Satisfaction and Discharge of Indenture. This Indenture shall
upon Company Request cease to be of further effect with respect to Securities of
any series (except as to any surviving rights of registration of transfer or
exchange of Securities of such series and replacement of lost, stolen or
destroyed Securities of such series herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
series, when
(1) either
(A) all Securities of such series theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 10.03) have been duly paid or delivered
to the Trustee for cancellation; or
(B) all such Securities of such Series not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company or the Guarantor, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose an amount sufficient to pay and discharge the entire
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indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) 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;
(2) the Company or the Guarantor has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company or the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of Clause
(1) of this Section, the obligations of the Trustee under Section 4.02 and the
last paragraph of Section 10.03 shall survive.
Section 4.02 . Application of Trust Money. Subject to the provisions of the
last paragraph of Section 10.03, all money deposited with the Trustee pursuant
to Section 4.01 and Article 12 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee.
ARTICLE 5
Remedies
Section 5.01 . Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest (including Special Interest) upon
any Security of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
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(2) default in the payment of the principal of, or premium, if any, on any
Security of that series at its Maturity; or
(3) default in the performance, or breach, of any covenant or warranty of the
Company or the Guarantor in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this Indenture
solely for the benefit of series of Securities other than that series), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(4) the entry by a court having jurisdiction in the premises of (A) a decree
or order for relief in respect of the Company or the Guarantor in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company or the Guarantor as bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or the Guarantor
under any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or the Guarantor or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(5) the commencement by the Company or the Guarantor of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency
reorganization or other similar law or of any other case or proceeding to be
adjudicated as bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company or the Guarantor in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or the Guarantor or of any substantial part of
its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company
or the Guarantor in furtherance of any such action; or
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(6) any other Event of Default provided with respect to Securities of that
series.
Section 5.02 . Acceleration of Maturity; Rescission and Annulment. If an Event
of Default with respect to Securities of any series at the time Outstanding
occurs and is continuing, then in every such case the Trustee or he Holders of
not less than 25% in principal amount of the Outstanding Securities of that
series may declare the principal amount of all the Securities of that series to
be due and payable immediately, by a notice in riting to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to the
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series
which have become due otherwise than by such declaration of acceleration and
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, its agents
and counsel;
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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Section 5.03 . Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when such
interest becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of and premium, if any, on
any Security at the Maturity thereof,
the Company shall, 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 premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the
rate or rates prescribed therefore in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 5.04 . Trustee May File Proofs of Claim. In case of any judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.
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No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 5.05 . Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expense,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.06 . Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (and premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment or
exchange pursuant to Section 3.05 if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 6.07;
Second: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest on the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest, respectively; and
Third: To the Company.
Section 5.07 . Limitation on Suits. No Holder of any Security of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
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(1) such Xxxxxx has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.08 . Unconditional Right of Holders to Receive Principal, Premium
and Interest. Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section
3.07) 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 shall
not be impaired without the consent of such Holder.
Section 5.09 . Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
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Trustee and the Holders shall continue as though no such proceeding had been
Instituted.
Section 5.10 . Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 3.06, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11 . Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12 . Control By Holders. The Holders of a majority in principal
amount of the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this
Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction.
Section 5.13 . Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (and premium, if any) or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
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Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 5.14 . Undertaking for Costs. 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 nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Company.
ARTICLE 6
The Trustee
Section 6.01 . Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.02 . Notice of Defaults. If a default occurs hereunder with respect
to Securities of any series, the Trustee shall give the Holders of Securities of
such series notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section5.01(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 60 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
Section 6.03 . Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(1) the Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
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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;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder.
Section 6.04 . Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
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Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
Section 6.05 . May Hold Securities. The Trustee any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar
or such other agent.
Section 6.06 . Money Held In Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 6.07 . Compensation And Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder. Such indemnification shall survive
the resignation or removal of the Trustee, the termination of this Agreement
and the satisfaction and discharge of the trust.
Section 6.08 . Conflicting Interests. If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Trustee
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shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture. To the extent permitted by such Act, the Trustee shall not be deemed
to have a conflicting interest by virtue of being a trustee under this Indenture
with respect to Securities of more than one series.
Section 6.09 . Corporate Trustee Required; Eligibility. There shall at all
times be one (and only one) Trustee hereunder with respect to the Securities of
each series, which may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall 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
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section and to the extent permitted by
the Trust Indenture Act, 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 with respect to the
Securities of any series shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 6.10 . Resignation And Removal; Appointment Of Successor. No
resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
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 6.11 shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
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.
If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after written request
therefore by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 6.09 and shall fail
to resign after written request therefore by the Company or by any such Holder,
or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 5.14, 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.
If the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the
Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, any Holder who has been a bona fide Holder of
a Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 1.06. Each
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notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 6.11 . Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
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Upon request of any such successor Trustee, the Company shall execute any and
all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the first
or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
Section 6.12 . Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee (including the trust created by this Indenture), shall be the
successor of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 6.13 . Preferential Collection of Claims Against Company. If and when
the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Company (or
any such other obligor).
ARTICLE 7
Holders' Lists And Reports By Trustee And Company
Section 7.01 . Company to Furnish Trustee Names and Addresses of Holders.
The Company shall furnish or cause to be furnished to the Trustee
(1) not more than 15 days after each Regular Record Date for Securities of
each series, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of such series as of the
preceding Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within 30 days
after the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished;
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excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 7.02 . Preservation of Information; Communications to Holders. The
Trustee shall 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.
The rights of 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, shall be as provided by the Trust
Indenture Act.
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 them shall be held accountable by reason of any disclosure of information as
to names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 7.03 . Reports By Trustee. Within 60 days after each May 15 beginning
with the May 15 following the date of this Indenture, and for so long as the
Securities remain outstanding, the Trustee shall mail to the Holders of
Securities a brief report dated as of such reporting date that complies with
Section 313(a) of the Trust Indenture Act(but if no event described in Section
313(a) of the Trust Indenture Act has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with Section 313(b)(2) of the Trust Indenture Act . The Trustee
shall also transmit by mail all reports as required by Section 313(c) of the
Trust Indenture Act.
A copy of each report at the time of its mailing to the Holders of Securities
shall be mailed to the Company and if such report is prepared after the
Exchange Registration Statement or Shelf Registration Statement has been
declared effective by the Commission, filed with the Commission and each stock
exchange on which the Securities are listed in accordance with Section 313(d)
of the Trust Indenture Act. The Company shall promptly notify the Trustee when
the Securities are listed on any stock exchange and of any delisting thereof.
Section 7.04 . Reports By Company. The Company shall file with the Trustee and
the Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
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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 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer Or Lease
Section 8.01 . Consolidation, Merger or Sale. Each of the Company and the
Guarantor covenants that it will not merge or consolidate with any other
corporation or sell, lease, transfer or otherwise dispose of all or
substantially all of its assets to any Person, except that each of the Company
and the Guarantor may merge or consolidate, or sell, lease, transfer or dispose
of all or substantially all of its assets, provided that:
(1) the successor Person, if other than the Company or the Guarantor, as the
case may be, shall be organized under the laws of the United States of America,
any State thereof or the District of Columbia and shall assume all of the
obligations of the Company or the Guarantor, as the case may be, under this
Indenture and under the Securities, including all covenants applicable to the
Company or the Guarantor, as the case may be, contained in this Indenture, the
Securities and the Guarantees, as the case may be; and
(2) the Company, the Guarantor or the successor Person, as the case may be,
shall not immediately after such merger or consolidation, or such sale, lease,
transfer or other disposition, be in default under any of such obligations.
Any such assumption of obligations under this Indenture by a successor Person
shall be evidenced by an indenture supplemental hereto, in form acceptable to
the Trustee, executed and delivered by the successor Person to the Trustee.
The Trustee may receive and shall be fully protected in relying upon an Opinion
of Counsel and Officers' Certificate as conclusive evidence that any such
supplemental indenture complies with the conditions and provisions of this
Article.
Section 8.02 . Successor Substituted. Upon any consolidation by the Company or
the Guarantor with or merger by the Company or the Guarantor into any other
corporation or any conveyance, transfer or lease of the properties and assets of
the Company or the Guarantor substantially as an entirety in accordance with
Section 8.01, the successor corporation formed by such consolidation or into
which the Company or the Guarantor is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or the Guarantor under this
Indenture with the same effect as if such successor corporation had been named
as the Company or the Guarantor herein, and thereafter, except in the case of a
lease, the
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predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and the Securities and may be liquidated and dissolved.
ARTICLE 9
Supplemental Indentures
Section 9.01 . Supplemental Indentures Without Consent of Holders. Without the
consent of any Holders, the Company, the Guarantor or when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or the
Guarantor and the assumption by any such successor of the covenants of the
Company or the Guarantor herein and in the Securities; or
(2) to add to the covenants of the Company or the Guarantor for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series)
or to surrender any right or power herein conferred upon the Company or the
Guarantor; or
(3) to add any additional Events of Default for the benefit of the Holders of
all or any series of Securities (and if such additional Events of Default are
to be for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add any additional Guarantor with respect to all or any series of
Securities; or
(5) to add to or change any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the issuance of Securities in
bearer form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of Securities
in uncertificated form; or
(6) 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 (A) shall neither (i) apply to any Security of any series
created prior to the execution of such supplemental indenture and entitled to
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the benefit of such provision nor (ii) modify the rights of the Holder of any
such Security with respect to such provision or (B) shall become effective only
when there is no such Security Outstanding; or
(7) to secure the Securities or the Guarantees; or
(8) to establish the form or terms of Securities and the Guarantee of any
series as permitted by Sections 2.01 and 3.01; or
(9) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11; or
(10) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture,
provided such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
Section 9.02 . Supplemental Indentures With Consent of Holders. With the
consent of (i) the Holders of not less than a majority in principal amount of
the Outstanding Securities (including, for these purposes, holders of
outstanding debt securities entitled to act under the Existing Indenture) or
(ii) if less than all of the several series of Outstanding Securities are
affected, the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series so affected, in either case by Act of
said Holders delivered to the Company, the Guarantor and the Trustee, the
Company and the Guarantor, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of
principal of or interest 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 any Security which
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02, or change any Place of Payment where, or the
coin and currency in which, any Security or any premium or interest thereon is
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payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities of
any series, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
(3) change any obligation of the Company to maintain an office or agency in
the places and for the purposes specified in Section 10.02; or
(4) modify any of the provisions of this Section 9.02, Section 5.13 or Section
10.10, except to increase any such percentage or to provide with respect to any
particular series the right to condition the effectiveness of any supplemental
indenture as to that series on the consent of the Holders of a specified
percentage of the aggregate principal amount of Outstanding Securities of such
series (which provision may be made pursuant to Section 3.01 without the
consent of any Holder) or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant changes in this
Section and Section 10.09, or the deletion of this proviso, in accordance with
the requirements of Section 6.11 and 9.01(8).
For the purposes of this Section 9.02, if the Securities of any series are
issuable upon the exercise of warrants, any holder of an unexercised and
unexpired warrant with respect to such series shall not be deemed to be a
Holder of Outstanding Securities of such series in the amount issuable upon the
exercise of such warrants.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
Section 9.03 . Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of Counsel of the
Company stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 9.04 . Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.05 . Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
Section 9.06 . Reference in Securities to Supplemental Indentures. Securities
of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the 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 10
Covenants
Section 10.01 . Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of each series of Securities that it shall
duly and punctually pay the principal of (and premium, if any) and interest on
the Securities of that series in accordance with the terms of the Securities and
this Indenture.
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Section 10.02 . Maintenance of Office or Agency. The Company shall 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 shall
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 of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 10.03 . Money for Securities Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) 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.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it shall, on or 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 (unless such Paying Agent is the Trustee) the
Company shall promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent shall comply with the provisions of the
Trust Indenture Act and:
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(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment of
principal (and premium, if any) or interest on the Securities; and
(3) at any time during the continuance of any such default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust
by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or
interest on any Security of any series and remaining unclaimed for three years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, or cause to be mailed to such Holder,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining shall be repaid
to the Company.
Section 10.04 . Corporate Existence. Subject to Article Seven, each of the
Company and the Guarantor will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights
(charter and statutory) and franchises; provided, however, that neither the
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Company nor the Guarantor shall be required to preserve any such right or
franchise if the Board of Directors of the Company or the Guarantor, as the case
may be, shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company or the Guarantor, as the case may be,
and that the loss thereof is not disadvantageous in any material respect to the
Holders.
Section 10.05 . Limitation on Liens. The Company shall not, nor shall it
permit any Restricted Subsidiary to, mortgage, pledge, or create (by merger or
otherwise) any lien, security interest, conditional sale or other title
retention agreement or other similar encumbrances on any of the assets of the
Company or any of its Restricted Subsidiaries except to secure Indebtedness to
the Company or a Wholly-owned Restricted Subsidiary, without making effective
provision whereby the Securities shall be secured at least equally and ratably
with the Indebtedness thereby secured (for the purpose of providing such equal
and ratable security the principal amount of the Securities shall mean and shall
not be less than that principal amount which could be declared to be due and
payable pursuant to Section 5.02 on the date of the making of such effective
provision and the extent of such equal and ratable security shall be adjusted,
to the extent permitted by law, as and when said principal amount changes over
time pursuant to Section 5.02 and any other provision hereof) so long as any
such Indebtedness is so secured, unless immediately thereafter the sum of (i)
the Indebtedness to be secured, (ii) the aggregate principal amount of all
outstanding Secured Indebtedness of the Company and its Restricted Subsidiaries
and (iii) the unsecured Funded Debt of the Restricted Subsidiaries (exclusive
of any unsecured Funded Debt or Secured Indebtedness owed to the Company or a
Wholly-owned Restricted Subsidiary) does not exceed 15% of the Consolidated Net
Tangible Assets; provided, however, that nothing contained in this Section
shall prevent, restrict or apply to:
(i) the giving, within ninety (90) days after the acquisition or
construction of such property, of any purchase money lien (including vendor's
rights under purchase contracts under an agreement whereby title is retained
for the purpose of securing the purchase price thereof) on property hereafter
acquired or constructed and not theretofore owned by the Company or such
Restricted Subsidiary, or the acquiring hereafter of property not theretofore
owned by the Company or such Restricted Subsidiary subject to any then existing
Mortgage securing Indebtedness (whether or not assumed), provided, however,
that in each case such Mortgage is limited to such acquired or constructed
property (and accretions thereto and, in the case of construction, any real
property on which such construction occurs and which was unimproved at the time
such construction was commenced) and that the principal amount of the
Indebtedness secured by such Mortgage, together with all other Indebtedness to
Persons other than the Company or a Restricted Subsidiary secured by Mortgages
on such property, shall not exceed the lesser of the cost of such acquired or
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constructed property to the Company or a Restricted Subsidiary or the fair
market value thereof at the time of acquisition or construction thereof by the
Company or a Restricted Subsidiary, and refundings or extensions of any such
Mortgage for an amount not exceeding the principal amount of the Indebtedness
so refunded or extended and applying only to the same property or assets
theretofore subject to such Mortgage and fixtures and building improvements
thereon;
(ii) for the purpose of reimbursing itself for the cost of acquisition
and/or the cost of improvement of real property, the giving by the Company or a
Restricted Subsidiary of a Mortgage on such real property, which is the sole
security for Indebtedness (a) incurred within three years after the date of
acquisition of such real property or the date of completion of the first
substantial improvements made thereon by the Company or such Restricted
Subsidiary, whichever date is the later, and (b) the amount of which does not
exceed the lesser of the aggregate cost of such real property and improvements
or the fair market value thereof and (c) the holder of which shall be entitled
to enforce payment of such Indebtedness solely by resorting to the security
therefor, without any liability on the part of the Company or such Restricted
Subsidiary for any deficiency;
(iii)(1) if made and continuing in the ordinary course of business, any
deposit, pledge or lien as security for the performance of any contract or
undertaking not directly or indirectly in connection with the borrowing of
money or the securing of Indebtedness, or (2) any deposit, pledge or lien with
any governmental agency required or permitted to qualify the Company or any
Restricted Subsidiary to conduct business, to maintain self-insurance or to
obtain the benefits of any law pertaining to workmen's compensation,
unemployment insurance, old age pensions, social security or similar matters,
or to obtain any stay or discharge in any legal or administrative proceedings,
or (3) any mechanics', workmen's, repairmen's, materialmen's or carriers' liens
or deposits or pledges to obtain the release thereof or (4) other liens,
deposits or pledges similar to those referred to in subclauses (2) and (3) of
this clause (iii), if made and continuing in the ordinary course of business;
(iv) any Mortgage on assets of the Company or any Subsidiary existing on the
date of this Indenture or any refundings or extensions thereof for an amount
not exceeding the principal amount of the Indebtedness so refunded or extended
and applying only to the same property or assets theretofore subject thereto
and fixtures and building improvement thereon;
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(v) liens for taxes, assessments or governmental charges or levies if such
taxes, assessments, governmental charges or levies shall not at the time be due
and payable, or if the same thereafter can be paid without penalty, or if the
same are being contested in good faith by appropriate proceedings;
(vi) liens created by or resulting from any litigation or legal proceeding
which at the time is currently being contested in good faith by appropriate
proceedings; liens arising out of judgments or awards as to which the time for
prosecuting an appeal or proceeding for review has not expired; leases existing
on property acquired in the ordinary course of business and renewals thereof;
landlords' liens on property held under lease; or any sale and leaseback
transaction not otherwise prohibited by this Indenture;
(vii) easements or similar encumbrances, the existence of which do not
impair the use of the property subject thereto for the purposes for which it is
used;
(viii) liens and other security interests of banks on deposits, compensating
balances and similar assets pursuant to local law or to customary bank note
agreements not otherwise involving secured borrowing;
(ix) any other liens of a nature similar to the foregoing which are not
incurred in connection with the borrowing of money or the obtaining of advances
or credit, and which do not materially limit the use of the property subject
thereto in the operation of the business of the Company or of any Restricted
Subsidiary or impair the value of such property for the purposes of such
business; or
(x) any Mortgage on assets of a Restricted Subsidiary existing on the date
it became a Subsidiary, or any refundings or extensions thereof for an amount
not exceeding the principal amount of the Indebtedness so refunded or extended
and applying only to the same property or assets theretofore subject thereto
and fixtures and building improvements thereon.
If the Company shall hereafter be required to secure the Securities at least
equally and ratably with any other Indebtedness pursuant to this Section, (i)
the Company will promptly deliver to the Trustee an Officers' Certificate
stating that such covenant has been complied with and an Opinion of Counsel
stating that in the opinion of such counsel such covenant has been complied
with and that any instruments executed by the Company or any Restricted
Subsidiary in the performance of such covenant comply with the requirements of
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such covenant and (ii) the Trustee is hereby authorized to enter into an
indenture or agreement supplemental hereto and to take such action, if any, as
it may deem advisable to enable it to enforce the rights of the Holders so
secured.
Section 10.06 . Payment of Taxes and Other Claims. The Company and the
Guarantor will pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company, the Guarantor or any Subsidiary or
upon the income, profits or property of the Company, the Guarantor or any
Subsidiary and (2) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the Company, the
Guarantor or any Subsidiary; provided, however, that the Company and the
Guarantor shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
Section 10.07 . Maintenance of Properties. The Company will cause all of the
properties owned or leased by the Company or any Subsidiary and used in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operating and maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
Section 10.08 . Restriction On Permitting Restricted Subsidiaries To Become
Unrestricted Subsidiaries And Unrestricted Subsidiaries To Become Restricted
Subsidiaries. (i) The Company will not permit any Restricted Subsidiary to be
designated as or otherwise to become an Unrestricted Subsidiary unless
immediately after such Restricted Subsidiary becomes an Unrestricted Subsidiary,
it will not own, directly or indirectly, any capital stock of any other
Restricted Subsidiary or any Mortgage on property of any other Restricted
Subsidiary.
(ii) The Company will not permit any Unrestricted Subsidiary to be designated
as a Restricted Subsidiary unless:
(a) at the time such Unrestricted Subsidiary becomes a Restricted Subsidiary
it has outstanding no Secured Indebtedness except such Secured Indebtedness as
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the Company could permit it to become liable for immediately after becoming a
Restricted Subsidiary under the provisions of Section 10.05; and
(b) the provisions of paragraph (iv) of this Section 10.08 shall be compiled
with if such Unrestricted Subsidiary has previously been a Restricted
Subsidiary.
(iii) The Company will not permit any Unrestricted Subsidiary which has
previously been a Restricted Subsidiary to be designated as a Restricted
Subsidiary unless:
(a) the provisions of paragraph (ii) of this Section 10.08 shall be complied
with;
(b) neither the Company nor any of its Subsidiaries shall have sold or disposed
of any capital stock of such Unrestricted Subsidiary at any time after it
ceased to be a Restricted Subsidiary, except to the Company or a Wholly-owned
Restricted Subsidiary or for directors' qualifying shares, unless the Company
or a Wholly-owned Restricted Subsidiary has acquired the capital stock so
disposed of, or unless such Unrestricted Subsidiary immediately after becoming
a Restricted Subsidiary would be a Wholly-owned Restricted Subsidiary;
(c) such Unrestricted Subsidiary shall not, at any time after it ceased to be a
Restricted Subsidiary, have issued or sold any shares of its Common Stock which
have not thereafter been reacquired by it or acquired by the Company or a
Wholly-owned Restricted Subsidiary, except such shares as the Company could
have permitted such Subsidiary to issue or sell under the provisions of
paragraph (i) of Section 10.08 if such Subsidiary had been a Restricted
Subsidiary at all times that it has been a Subsidiary; and
(d) such Unrestricted Subsidiary shall not, at any time after it ceased to be a
Restricted Subsidiary, have merged or consolidated with any other corporation
unless such Unrestricted Subsidiary immediately after becoming a Restricted
Subsidiary would be a Wholly-owned Restricted Subsidiary.
(iv) Promptly after the adoption of any Board Resolution designating a
Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted
Subsidiary as a Restricted Subsidiary, a copy thereof shall be filed with the
Trustee, together with an Officers' Certificate stating that the provisions of
this Section 10.08 have been complied with in connection with such designation,
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and, in case of the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary, setting forth the name of each other Subsidiary (if any) which has
become an Unrestricted Subsidiary as a result of such designation.
Section 10.09 . Waiver of Covenant. The Company and the Guarantor may omit in
any particular instance to comply with any term, provision or condition set
forth in Section 10.04 through Section 10.08 inclusive, if before the time for
such compliance the Holders of (i) a majority in principal amount of the
Outstanding Securities or (ii) in case less than all of the several series of
Securities then Outstanding are affected by the omission, at least a majority in
principal amount of the Outstanding Securities of each series so affected shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the Guarantor and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
Section 10.10 . Statements as to Compliance. The Company or the Guarantor will
deliver to the Trustee, within 120 days after the end of each fiscal year a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
compliance by the Company and the Guarantor with all conditions and covenants
under this Indenture. For purposes of this Section 10.10, such compliance shall
be determined without regard to any period of grace or requirement of notice
under this Indenture.
ARTICLE 11
Redemption Of Securities
Section 11.01 . Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 3.01
for such Securities) in accordance with this Article.
Section 11.02 . Election To Redeem; Notice To Trustee. The election of the
Company to redeem any Securities shall be evidenced by a Board Resolution or in
another manner specified as contemplated by Section 3.01 for such Securities. In
case of any redemption at the election of the Company of all or less than all
the Securities of any series (including any such redemption affecting only a
single Security), the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
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Securities 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 shall furnish the
Trustee with an Officers' Certificate of the Company evidencing compliance with
such restriction.
Section 11.03 . Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities of any series with the same terms are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by lot or such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
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 series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in the case of any Securities selected
for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be redeemed.
Section 11.04 . Notice of Redemption. Notice of redemption shall be given not
less than 30 nor more than 60 days prior to the Redemption Date, to each Holder
of Securities to be redeemed.
Each such notice of redemption shall specify the Redemption Date, the Redemption
Price, the Place or Places of Payment, that the Securities of such series are
being redeemed at the option of the Company pursuant to provisions contained in
the terms of the Securities of such series, if such be the case, together with a
brief statement of the facts permitting such redemption, that payment will be
made upon presentation and surrender of the applicable Securities, that any
interest accrued to the Redemption Date will be paid as specified in said
notice, and that on and after said Redemption Date any interest thereon or, in
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the case of partial redemptions, on the portions thereof to be redeemed, will
cease to accrue. If less than all the Securities of any series are to be
redeemed the notice of redemption shall specify the numbers of the Securities of
such series to be redeemed. In case any Security of any series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
Redemption Date, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof will
be issued, or, in the case of Securities providing appropriate space for such
notation, at the option of the Holders, the Trustee, in lieu of delivering a new
Security or Securities as aforesaid, may make a notation on such Security of the
payment of the redeemed portion thereof.
Notice of redemption of Securities to be redeemed at the election of the Company
shall be given by the Company or, at the Company's request, by the Trustee in
the name and at the expense of the Company.
Section 11.05 . Deposit of Redemption Price. On or before (but in the case of
payments to be made at a Place of Payment outside of the United States, its
territories, possessions and areas subject to its jurisdiction, at least one
Business Day before) any Redemption Date, the Company shall deposit in
immediately available funds with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
Section 11.06 . Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest. Except as provided in the next succeeding paragraph,
upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that,
unless otherwise specified as contemplated by Section 3.01, installments of
interest on Registered Securities 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 according to their terms and the provisions of Section
3.07.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date as prescribed in the Security.
Section 11.07 . Securities Redeemed In Part. Any Security which is to be
redeemed only in part shall be surrendered at a Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
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the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
Section 11.08 . Mandatory Redemption. The Securities shall be mandatorily
redeemable, in whole but not in part, on or before August 31, 2004, if the
Company does not complete the Xxxxxxxx Xxxxx'x Transaction prior to that date.
The Company will give the Holders of the Securities at least 20 day's prior
written notice of the Redemption Date for a redemption under this provision.
The Securities will be redeemed at a redemption price of 101% of the principal
amount of the Securities to be redeemed, plus accrued and unpaid interest, if
any, and any other amounts due to the Redemption Date. Each such notice of
redemption shall specify the Redemption Date, the Redemption Price, the Place or
Places of Payment, that the Securities of such series are being redeemed
pursuant to this provision, that payment will be made upon presentation and
surrender of the applicable Securities, that any interest accrued to the
Redemption Date will be paid as specified in said notice, and that on and after
said Redemption Date will be paid as specified in such notice, and that on and
after said Redemption Date any interest thereon will cease to accrue.
ARTICLE 12
Defeasance And Covenant Defeasance
Section 12.01 . Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 12.02 or
Section 12.03 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 3.01 as being defeasible pursuant to
Section 12.02 or 12.03, in accordance with any applicable requirements provided
pursuant to Section 3.01 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced or authorized by a Board
Resolution or in another manner specified as contemplated by Section 3.01 for
such Securities.
Section 12.02 . Defeasance and Discharge. Upon the Company's exercise of its
option (if any) to have this Section applied to any Securities or any series of
Securities, as the case may be, the Company and the Guarantor shall be deemed to
have been discharged from their respective obligations with respect to such
Securities and Guarantees of such series as provided in this Section on and
after the date the conditions set forth in Section 12.04 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Securities and to have satisfied all its other obligations
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under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 12.04 and as more fully set forth in such Section, payments in respect
of the principal of and any premium and interest on such Securities when
payments are due, (2) the Company's obligations with respect to such Securities
under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (3) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (4) this Article.
Subject to compliance with this Article, the Company may exercise its option (if
any) to have this Section applied to any Securities notwithstanding the prior
exercise of its option (if any) to have Section 12.03 applied to such
Securities.
Section 12.03 . Covenant Defeasance. Upon the Company's exercise of its option
(if any) to have this Section applied to any Securities or any series of
Securities, as the case may be, (1) the Company and the Guarantor shall be
released from its obligations under Section 10.05 and any covenants provided
pursuant to Section 3.01(21), Article 8, and Section 10.07, Section 10.08, and
Section 10.09, for the benefit of the Holders of such Securities and (2) the
occurrence of any event specified in Sections 5.01(4) (with respect to any such
covenants provided pursuant to Section 3.01(21), Article 8, and Section 10.07,
Section 10.08, and Section 10.09) or Section 5.01(7) shall be deemed not to be
or result in an Event of Default, in each case with respect to such Securities
as provided in this Section on and after the date the conditions set forth in
Section 12.04 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such Securities,
the Company and the Guarantor may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
specified Section (to the extent so specified in the case of Section 5.01(4)),
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
Section 12.04 . Conditions to Defeasance or Covenant Defeasance. The following
shall be the conditions to the application of Section 12.02 or Section 12.03 to
any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be deposited with
the Trustee (or another trustee which satisfies the requirements contemplated by
Section 6.09 and agrees to comply with the provisions of this Article applicable
to it) as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefits of
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the Holders of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations (as defined below) or, in the case of Securities denominated in a
Foreign Currency, Foreign Government Securities (as defined below), which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than the due date of any
payment, money in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or any
such other qualifying trustee) to pay and discharge, the principal of and any
premium and interest on such Securities on the respective Stated Maturities, in
accordance with the terms of this Indenture and such Securities.
As used herein, "U.S. Government Obligation" means (x) any security which is (i)
a direct obligation 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 (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 (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified in
Clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and held,
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 the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest evidenced
by such depositary receipt.
As used herein, "Foreign Government Securities" means, with respect to
Securities of any series that are denominated in a Foreign Currency, securities
that are (i) direct obligations of the government that issued such currency for
the payment of which obligations its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of such government (the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation of such
government) which, in either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof.
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(2) In the event of an election to have Section 12.02 apply to any Securities
or any series of Securities, as the case may be, the Company shall have
delivered to the Trustee an Opinion of Counsel of the Company stating that the
Holders of such Securities will not recognize gain or loss for Federal income
tax purposes as a result of the Company's exercise of its option under this
Section 12.02 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 option had
not been exercised.
(3) In the event of an election to have Section 12.03 apply to any Securities
or any series of Securities, as the case may be, the Company shall have
delivered to the Trustee an Opinion of Counsel of the Company to the effect that
the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the Company's exercise of its option under
this Section 12.02 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 option had
not been exercised.
(4) The Company shall have delivered to the Trustee an Officer's Certificate of
the Company to the effect that all conditions precedent herein providing for the
satisfaction and discharge of the entire Indebtedness on all Outstanding
Securities have been complied with.
(5) No event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to such Securities or any other Securities
shall have occurred and be continuing at the time of such deposit or, with
regard to any such event specified in Sections 5.01(5) and (6), at any time on
or prior to the 90th day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have
a conflicting interest within the meaning of the Trust Indenture Act (assuming
all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall 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.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the meaning
of the Investment Company Act unless such trust shall be registered under such
act or exempt from registration thereunder.
93
(9) The Company shall have delivered to the Trustee an Officer's Certificate of
the Company and an Opinion of Counsel of the Company, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance have
been complied with.
Section 12.05 . Deposited Money, U.S. Government Obligations and Foreign
Government Securities to Be Held in Trust; Miscellaneous Provisions. Subject
to the provisions of the last paragraph of Section 10.03, all money, U.S.
Government Obligations and Foreign Government Securities (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee (solely for
purposes of this Section and Section 12.06, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section 12.04
in respect of any Securities shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities 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
such Securities, 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.
The Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations or Foreign
Government Securities deposited pursuant to Section 12.04 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money,
U.S. Government Obligations or Foreign Government Securities held by it as
provided in Section 12.04 with respect to any Securities which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
Section 12.06 . Reinstatement. If the Trustee or the Paying Agent is unable to
apply any money in accordance with this Article with respect to any Securities
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture and such Securities from which the Company has
been discharged or released pursuant to Section 12.02 or 12.03 shall be revived
94
and reinstated as though no deposit had occurred pursuant to this Article with
respect to such Securities, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 12.05 with
respect to such Securities in accordance with this Article; provided, however,
that if the Company makes any payment of principal of or any premium or interest
on any such Security following such reinstatement of their obligations, the
Company shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.
ARTICLE 13
Guarantee of Securities
Section 13.01 . Unconditional Guarantee. For good and valuable consideration
receipt of which is hereby acknowledged, and intending to be legally bound
hereby, the Guarantor, hereby unconditionally guarantees to each Holder of a
Security of any series, authenticated and delivered by the Trustee, upon which
the Guarantee is endorsed, the due and punctual payment of the principal of,
premium, if any, and interest on, and any Redemption Price with respect to such
Security, when and as the same shall become due and payable, whether at
maturity, upon acceleration or redemption or otherwise, in accordance with the
terms of such Security and of this Indenture.
The Guarantor agrees to determine, at least one Business Day prior to the date
upon which a payment of principal of, premium, if any, and interest on said
Security, and any Redemption Price with respect to such Security, is due and
payable, whether the Company has available the funds to make such payment as the
same shall become due and payable. In case of the failure of the Company to
punctually pay any such principal of, premium, if any, and interest on, and any
Redemption Price with respect to, such Security, the Guarantor hereby agrees to
cause any such payment to be made punctually when and as the same shall become
due and payable, whether at maturity, upon acceleration or redemption, or
otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as principal
and not merely as surety, and shall be unconditional, irrevocable, and absolute,
irrespective of, and shall be unaffected by, any invalidity, irregularity, or
unenforceability of such Security or such Indenture, any failure to enforce the
provisions of such Security or such Indenture, or any waiver, modification,
consent or indulgence granted to the Company with respect thereto (unless the
same shall also be provided to the Guarantor), by the Holder of such Security or
the Trustee with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same, or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
surety or of a guarantor. The Guarantor hereby waives diligence, presentment,
95
demand of payment, filing of claims with a court in the event of merger,
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to any such Security or the
indebtedness evidenced thereby, and all demands whatsoever and covenants that
this Guarantee will not be discharged except by payment in full of the principal
of, premium, if any, and interest on, and any Redemption Price with respect to,
the Securities and the complete performance of the obligations contained in such
Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of any Security
against the Company in respect of all amounts paid to such Holder by the
Guarantor pursuant to the provisions of this Guarantee; provided, however, that
the Guarantor shall not, without the consent of the Holders of all of the
Securities then outstanding, be entitled to enforce or to receive any payments
arising out of or based upon such right of subrogation until the principal of,
premium, if any, and interest on, and any Redemption Price with respect to all
Securities shall have been paid in full or payment thereof shall have been
provided for in accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if following any
payment of principal or interest by the Company on the Securities to the holders
of the Securities it is determined by a final decision of a court of competent
jurisdiction that such payment shall be avoided by a trustee in bankruptcy
(including any debtor-in-possession) as a preference under 11 U.S.C. Section 547
and such payment is paid by such holder to such trustee in bankruptcy, then and
to the extent of such repayment, the obligations of the Guarantor hereunder
shall remain in full force and effect.
The Guarantee set forth in this Article shall not be valid or become obligatory
for any purpose with respect to a Security unless and until the certificate of
authentication on such Security shall have been signed by the Trustee.
The Guarantee set forth in this Article is intended for the benefit of the
Trustee and each of the Holders of Securities and shall be enforceable by such
Trustee and such Holders.
The Guarantee set forth in this Article shall be governed by the laws of the
State of New York.
Section 13.02 . Execution of Guarantee. To evidence its Guarantee to the
Holders specified in Section 13.01, the Guarantor hereby agrees to execute the
Guarantee in substantially the form above recited, to be endorsed on each
Security authenticated and delivered by the Trustee. Each such Guarantee shall
be executed on behalf of the Guarantor in a manner identical to that prescribed
96
in Section 3.03 of the Indenture relating to the execution, authentication,
delivery and dating of such Securities prior to the authentication of the
Security on which it is endorsed, and the delivery of such Security by the
Trustee, after the authentication thereof hereunder, shall constitute due
delivery of such Guarantee on behalf of the Guarantor.
The Guarantee set forth in this Article shall not be valid or become obligatory
for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by the Trustee.
Section 13.03 . Assumption by Guarantor. The Guarantor shall assume all of the
rights and obligations of the Company hereunder with respect to a series of
Securities and under the Securities of such series if, upon a default by the
Company in the due and punctual payment of the principal of, premium, if any,
and interest on such Securities, and any Redemption Price with respect to such
Securities, the Guarantor is prevented by any court order or judicial proceeding
from fulfilling its obligations under Section 13.01 with respect to such series
of Securities. Such assumption shall result in the Securities of such series
becoming the direct obligations of the Guarantor and shall be effected without
the consent of the Holders of the Securities of any series. Upon such
assumption, the Company shall be released from all of its liabilities hereunder
and under such Securities as obligor on the Securities of such series.
This instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
97
In Witness Whereof, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
THE MAY DEPARTMENT STORES COMPANY
By: /s/ Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title: Senior Vice President &
Treasurer
THE MAY DEPARTMENT STORES COMPANY,
Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Secretary
X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By: /s/ X. Xxxxxx
Name: X. Xxxxxx
Title: Vice President
ANNEX A-1
FORM OF TRANSFER CERTIFICATE -
RESTRICTED GLOBAL SECURITY TO
TEMPORARY REGULATION S GLOBAL SECURITY
REGULATION S GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 3.05(b)(iii)
of the Indenture)
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
[address]
Re: [title of series] of The May Department Stores Company (the "Securities")
Reference is hereby made to the Indenture, dated as of July 20, 2004 (the
"Indenture"), among The May Department Stores Company (the "Company"), The May
Department Stores Company (the "Guarantor") and X.X. Xxxxxx Trust Company,
National Association, as Trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
This certificate relates to U.S. $ aggregate principal amount of
Securities which are evidenced by the Restricted Global Security (CUSIP No.
) and held with the Depositary in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest in the Securities to a Person who will take delivery thereof
in the form of an equal aggregate principal amount of Securities evidenced by
the Temporary Regulation S Global Security (CUSIP No. ), which
amount, immediately after such transfer, is to be held with the Depositary
through Euroclear or Clearstream or both.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 903 or Rule 904 under the United States Securities
Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor
does hereby further certify that:
(b) the offer of the Securities was not made to a person in the United States;
(c) either:
(i) at the time the buy order was originated, the transferee was outside the
United States or the Transferor and any person acting on its behalf reasonably
believed that the transferee was outside the United States, or
(ii) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither the Transferor nor any person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States;
(d) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(a) of Regulation S, as applicable;
(e) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act; and
(f) upon completion of the transaction, the beneficial interest being
transferred as described above will be held with the Depositary through
Euroclear or Clearstream or both.
We understand that this certificate is required in connection with certain
securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company, the Guarantor and the Initial Purchasers of the
Securities under the Purchase Agreement, dated _______ with the Company relating
to the Securities. Terms used in this certificate and not otherwise defined in
the Indenture have the meanings set forth in Regulation S under the Securities
Act.
Dated: [Insert Name of Transferor]
By:
Name:
Title:
(If the Transferor is a corporation, partnership or fiduciary, the title of the
Person signing on behalf of such registered owner must be stated.)
A-1-2
ANNEX A-2
FORM OF TRANSFER CERTIFICATE -
RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
REGULATION S GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 3.05(b)(iv) of the Indenture)
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee [address]
Re: [title of series] of The May Department Stores Company (the "Securities")
Reference is hereby made to the Indenture, dated as of July 20, 2004 (the
"Indenture"), among The May Department Stores Company (the "Company"), The May
Department Stores Company (the "Guarantor") and X.X. Xxxxxx Trust Company,
National Association, as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This certificate relates to U.S. $ aggregate principal amount of
Securities which are evidenced by the Restricted Global Security (CUSIP No.
) and held with the Depositary in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest in the Securities to a Person who will take delivery thereof
in the form of an equal aggregate principal amount of Securities evidenced by
the Regulation S Global Security (CUSIP No. ).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that:
(a) with respect to transfers made in reliance on Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"):
(i) the offer of the Securities was not made to a person in the United States;
(ii) either:
1) at the time the buy order was originated, the transferee was outside the
United States or the Transferor and any person acting on its behalf reasonably
believed that the transferee was outside the United States, or
2) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither the Transferor nor any person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States;
(iii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(aw) of Regulation S, as applicable; and
(iv) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act; or
(b) with respect to transfers made in reliance on Rule 144 under the Securities
Act, the Securities are being transferred in a transaction permitted by Rule 144
under the Securities Act.
We understand that this certificate is required in connection with certain
securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company, the Guarantor and Initial Purchasers of the
Securities under the Purchase Agreement, dated with the Company
relating to the Securities. Terms used in this certificate and not otherwise
defined in the Indenture have the meanings set forth in Regulation S under the
Securities Act.
Dated: [Insert Name of Transferor]
By:
Name:
Title:
(If the Transferor is a corporation, partnership or fiduciary, the title of the
Person signing on behalf of such registered owner must be stated.)
A-2-2
ANNEX B
FORM OF TRANSFER CERTIFICATE -
TEMPORARY REGULATION S GLOBAL SECURITY OR
REGULATION S GLOBAL SECURITY TO RESTRICTED
GLOBAL SECURITY
RESTRICTED GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 3.05(b)(v) of the Indenture)
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
[address]
Re: [title of series] of The May Department Stores Company (the "Securities")
Reference is hereby made to the Indenture, dated as of July 20, 2004 (the
"Indenture"), among The May Department Stores Company (the "Company"), The May
Department Stores Company (the "Guarantor") and X.X. Xxxxxx Trust Company,
National Association, as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This certificate relates to U.S. $ aggregate principal amount
of Securities which are evidenced by the Temporary Regulation S Global Security
or the Regulation S Global Security (CUSIP No. ) and held with the
Depositary through Euroclear or Clearstream or both in the name of [insert name
of transferor] (the "Transferor") during the Restricted Period. The Transferor
has requested a transfer of such beneficial interest in the Securities to a
Person that will take delivery thereof in the form of an equal principal amount
of Securities evidenced by the Restricted Global Security (CUSIP No. ).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of 1933,
as amended, and accordingly the Transferor does hereby further certify that the
Securities are being transferred to a person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A and the Securities have been transferred in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States.
We understand that this certificate is required in connection with certain
securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company, the Guarantor and the Initial Purchasers of the
Securities under the Purchase Agreement, dated with the Company
relating to the Securities.
Dated: [Insert Name of Transferor]
By:
Name:
Title:
(If the Transferor owner is a corporation, partnership or fiduciary, the title
of the Person signing on behalf of such registered owner must be stated.)
B-2
ANNEX C-1
FORM OF CERTIFICATION TO BE GIVEN BY HOLDERS OF
BENEFICIAL INTEREST IN A TEMPORARY REGULATION S
GLOBAL SECURITY TO EUROCLEAR OR CLEARSTREAM
OWNER SECURITIES CERTIFICATION
[EUROCLEAR BANC S.A./N.V.,
as Operator of the Euroclear
Clearance System] [or] CLEARSTREAM BANKING,
SOCIETE ANONYME, LUXEMBOURG]
Re: [title of series] of The May Department Stores Company (the "Securities")
Reference is hereby made to the Indenture, dated as of July 20, 2004 (the
"Indenture"), among The May Department Stores Company (the "Company"), The May
Department Stores Company (the "Guarantor") and X.X. Xxxxxx Trust Company,
National Association, as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This certificate relates to U.S. $ aggregate principal amount
of Securities which are evidenced by the Temporary Regulation S Global Security
(CUSIP No. ) and held with the Depositary through Euroclear or
Clearstream or both in the name of [insert name of holder] (the "Holder").
In respect of such Securities, the Holder does hereby certify that as of the
date hereof, the above-captioned Securities are beneficially owned by non-U.S.
Persons and are not held for purposes of resale directly or indirectly to a U.S.
Person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America, its
territories and possessions, any state of the United States, and the District of
Columbia. As used herein, U.S. Person has the meaning assigned to it in Rule
902 under the Securities Act of 1933, as amended.
We undertake to advise you immediately by tested telex on or prior to the date
on which you intend to submit your certification relating to the Securities held
by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
We understand that this certification is required in connection with certain
securities laws in the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certification is or
would be relevant, we irrevocably authorize you to produce this certification or
a copy thereof to any interested party in such proceedings. This certificate
and the statements contained herein are made for your benefit and the benefit of
the Company, the Guarantor and the Initial Purchasers of the Securities under
the Purchase Agreement, dated with the Company relating to the
Securities.
Date:
[Name of Person Making Certification]
C-1-2
ANNEX C-2
FORM OF CERTIFICATION TO BE GIVEN
BY THE EUROCLEAR OPERATOR OR CLEARSTREAM,
SOCIETE ANONYME
DEPOSITARY SECURITIES CERTIFICATION
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
[address]
Re: [title of series] of The May Department Stores Company (the "Securities")
Reference is hereby made to the Indenture, dated as of July 20, 2004 (the
"Indenture"), among The May Department Stores Company (the "Company"), The May
Department Stores Company (the "Guarantor") and X.X. Xxxxxx Trust Company,
National Association, as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organizations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organizations") substantially to the effect
set forth in the Indenture, as of the date hereof, $ aggregate
principal amount of the above-captioned Securities are beneficially owned by
non-U.S. Persons and are not held for purposes of resale directly or indirectly
to a U.S. Person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America, its
territories and possessions, any state of the United States, and the District of
Columbia. As used herein, U.S. Person has the meaning assigned to it in Rule
902 under the Securities Act of 1933, as amended.
We further certify (i) that we are not making available herewith for exchange
any portion of the Temporary Regulation S Global Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certification is required in connection with certain
securities laws of the United States. If administrative or legal proceedings
are commenced or threatened in connection with which this certification is or
would be relevant, we irrevocably authorize you to produce this certification
or a copy thereof to any interested party in such proceedings. This certificate
and the statements contained herein are made for your benefit and the benefit of
the Company, the Guarantor and the Initial Purchasers of the Securities under
the Purchase Agreement, dated with the Company relating to the
Securities.
Dated:
By:
[EUROCLEAR BANC SA/N.V., as
Operator of the Euroclear
Clearance System] [or]
[CLEARSTREAM BANKING,
SOCIETE ANONYME LUXEMBOURG]
C-2-2
ANNEX C-3
FORM OF CERTIFICATION TO BE GIVEN BY
TRANSFEREE OF BENEFICIAL INTEREST IN A
TEMPORARY REGULATION S GLOBAL SECURITY
AFTER THE RESTRICTED PERIOD
TRANSFEREE SECURITIES CERTIFICATION
[EUROCLEAR BANC S.A./N.V.,
as Operator of the Euroclear
Clearance system] [or] [CLEARSTREAM BANKING,
SOCIETE ANONYME, LUXEMBOURG]
Re: [title of series] of The May Department Stores Company (the "Securities")
Reference is hereby made to the Indenture, dated as of July 20, 2004 (the
"Indenture"), among The May Department Stores Company (the "Company"), The May
Department Stores Company (the "Guarantor") and X.X. Xxxxxx Trust Company,
National Association, as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
For purposes of acquiring a beneficial interest in the Temporary Regulation S
Global Security, the undersigned certifies that it is not a U.S. Person as
defined by Regulation S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held by
you in which we intend to acquire a beneficial interest in accordance with your
operating procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
We understand that this certificate is required in connection with certain
securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company, the Guarantor and the Initial Purchasers of the
Securities under the Purchase Agreement, dated with the Company
relating to the Securities.
Dated:
By:
As, or as agent for, the beneficial
acquiror of the Securities to which
this certificate relates.
ANNEX D-1
FORM OF TRANSFER CERTIFICATE -
NON-GLOBAL RESTRICTED SECURITY TO
RESTRICTED GLOBAL SECURITY
RESTRICTED GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 3.05(b)(vi) of the Indenture)
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
[address]
Re: [title of series] of The May Department Stores Company (the "Securities")
Reference is hereby made to the Indenture, dated as of July 20, 2004 (the
"Indenture"), among The May Department Stores Company (the "Company"), The May
Department Stores Company (the "Guarantor") and X.X. Xxxxxx Trust Company,
National Association, as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This certificate relates to $ aggregate principal amount of Securities
held in definitive form (CUSIP No. ) by [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such Securities to a
Person that will take delivery in the form of an equal principal amount of
Securities evidenced by the Restricted Global Security (CUSIP No. ).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of 1933,
as amended, and accordingly the Transferor does hereby further certify that the
Securities are being transferred to a person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A and the Securities have been transferred in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States.
We understand that this certificate is required in connection with certain
securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company, the Guarantor and the Initial Purchasers of the
Securities under the Purchase Agreement, dated with the Company
relating to the Securities.
Dated: [Insert Name of Transferor]
By:
Name:
Title:
D-1-2
ANNEX D-2
FORM OF CERTIFICATE - NON-GLOBAL
RESTRICTED SECURITY TO REGULATION S GLOBAL
SECURITY OR TEMPORARY REGULATION S
GLOBAL SECURITY
REGULATION S GLOBAL NOTE CERTIFICATE
(for transfers pursuant to Section 3.05(b)(vi) of the Indenture)
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
[address]
Re: [title of series] of The May Department Stores Company (the "Securities")
Reference is hereby made to the Indenture, dated as of July 20, 2004 (the
"Indenture"), among The May Department Stores Company (the "Company"), The May
Department Stores Company (the "Guarantor") and X.X. Xxxxxx Trust Company,
National Association, as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This certificate relates to $ aggregate principal amount of
Securities held in definitive form (CUSIP No. ) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities to a Person that will take delivery in the form of
an equal principal amount of Securities evidenced by the Regulation S Global
Security or the Temporary Regulation S Global Security (CUSIP No. ).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with (a) Rule 903 or Rule 904 under the Securities Act of
1933, as amended (the "Act"), or (b) Rule 144 under the Act, , if available, and
accordingly the Transferor does hereby further certify that:
(a) if the transfer has been effected pursuant to Rule 903 or Rule 904:
(i) the offer of the Securities was not made to a person in the United States;
(ii) either:
1) at the time the buy order was originated, the transferee was outside the
United States or the Transferor and any person acting on its behalf reasonably
believed that the transferee was outside the United States, or
2) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither the Transferor nor any person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States;
(iii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(iv) the transaction is not part of a plan or scheme to evade the registration
requirements of the Act; and
(v) if such transfer is to occur during the Restricted Period, upon completion
of the transaction, the beneficial interest being transferred as described above
was held with the Depositary through [Euroclear] [Clearstream]; or
(b) if the transfer has been effected pursuant to Rule 144:
(i) more than two years has elapsed since the date of the closing of the
initial placement of the Securities pursuant to the Purchase Agreement, dated
, among the Company, the Guarantor and the representatives of the
several purchasers named therein; and
(ii) the Securities have been transferred in a transaction permitted by Rule
144 and made in accordance with any applicable securities laws of any state of
the United States.
We understand that this certificate is required in connection with certain
securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company, the Guarantor and the Initial Purchasers of the
Securities under the Purchase Agreement, dated with the Company
relating to the Securities.
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Dated: [Insert Name of Transferor]
By:
Name:
Title:
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ANNEX E
INSTITUTIONAL ACCREDITED INVESTOR LETTER
The May Department Stores Company
000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
[Insert name and address of initial purchasers]
X.X. Xxxxxx Trust Company, National Association
[address]
Ladies and Gentlemen:
In connection with our proposed purchase of [title of securities] (collectively,
the "Notes") of The May Department Stores Company (the "Issuer"), we confirm
that:
1. We are an "accredited investor" (as defined in Rule 501(a) (1), (2), (3) or
(7) of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act"), purchasing for our own account, and we have such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the Notes, and we are able to bear the
economic risk of our investment.
2. We understand and acknowledge that the Notes have not been registered under
the Securities Act or any other applicable securities law, and that the Notes
may not be offered or sold except as permitted in the following paragraphs.
We agree that if we should sell any Notes, we will do so only (A) to the Issuer
or any subsidiary thereof, (B) pursuant to an effective registration statement
under the Securities Act, (C) in accordance with Rule 144A under the Securities
Act to a "qualified institutional buyer" (as defined therein), (D) outside the
Untied States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) to an institutional accredited investor (as defined in the indenture
governing the notes (the "Indenture")) that, prior to such transfer, furnishes
to the trustee under the Indenture a signed letter containing certain
representations and agreements relating to the restrictions on transfer of the
Notes (the form of which letter can be obtained from the trustee) and in a
principal amount of at least $250,000, or (F) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available) or any
other available exemption from the registration requirements of the Securities
Act, and we further agree to provide to any person purchasing any of the Notes
from us a notice advising such purchaser that resales of the Notes are
restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we may be required
to furnish to the Issuer and the trustee a legal opinion satisfactory to them
and such certifications and other information as the Issuer may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
4. We are acquiring the Notes for investment purposes and not with a view to
distribution thereof or with any present intention of offering or selling any
Notes, except as permitted above.
You are entitled to rely upon this letter and you are irrevocably authorized to
produce this letter or a copy hereto to any interested party in any
administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
Very truly yours,
By:
Name:
Title:
Date:
Notes to be Purchased:
$ principal amount of the $ Notes
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ANNEX F
FORM OF INSTRUCTION FOR EXCHANGE
(For use prior to the exchange of a Temporary Regulation S
for one or more Restricted Securities.)
EXCHANGE INSTRUCTIONS
THE MAY DEPARTMENT STORES COMPANY
[title of series] (the "Securities")
Pursuant to Section 3.05(b)(vii)(2) of the Indenture, dated as of July 20, 2004
(the "Indenture"), among The May Department Stores Company (the "Company"), The
May Department Stores Company (the "Guarantor") and X.X. Xxxxxx Trust Company,
National Association, as Trustee, [Name of Initial Purchaser] hereby requests
that U.S.$ aggregate principal amount of the above-captioned
Securities held by you for our account in the Temporary Regulation S Security
(CUSIP No. ) (as defined in the Indenture) be exchanged for one or more
Restricted [Global] Securities [(CUSIP No. )] in the denominations and
registered in the names of the holders requested as set forth below:
Denominations Registered Name
Dated: [Name of Initial Purchaser]
By:
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