Exhibit 2
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FEDERATED DEPARTMENT STORES, INC.
and
STATE STREET BANK AND TRUST COMPANY
(successor to The First National Bank of Boston),
Trustee
EIGHTH SUPPLEMENTAL TRUST INDENTURE
Dated as of July 14, 1997
Supplementing that certain
INDENTURE
Dated as of December 15, 1994
Authorizing the Issuance and Delivery of
Senior Securities
consisting of $300,000,000 aggregate principal amount of
7.45% Senior Debentures due 2017
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TABLE OF CONTENTS
Page
RECITALS................................................................... 1
[Form of Face of Security]................................................. 2
[Form of Reverse of Security].............................................. 3
ARTICLE I. ISSUANCE OF SENIOR DEBENTURES................................... 6
Section 1.1. Issuance of Senior Debentures; Principal Amount;
Maturity.............................................. 6
Section 1.2. Interest on the Senior Debentures; Payment of Interest. 6
ARTICLE II. CERTAIN DEFINITIONS............................................ 7
Section 2.1. Certain Definitions.................................... 7
ARTICLE III. CERTAIN COVENANTS............................................. 14
Section 3.1. Liens.................................................. 14
Section 3.2. Sale and Leaseback Transactions........................ 14
Section 3.3. Permitting Unrestricted Subsidiaries to Become
Restricted Subsidiaries............................... 15
Section 3.4. Payment Office......................................... 15
ARTICLE IV. ADDITIONAL EVENTS OF DEFAULT................................... 16
Section 4.1. Additional Events of Default........................... 16
ARTICLE V. DEFEASANCE...................................................... 16
Section 5.1. Applicability of Article V of the Indenture............ 16
ARTICLE VI. MISCELLANEOUS.................................................. 17
Section 6.1. Reference to and Effect on the Indenture............... 17
Section 6.2. Waiver of Certain Covenants............................ 17
Section 6.3. Supplemental Indenture May be Executed In Counterparts. 18
Section 6.4. Effect of Headings..................................... 18
EIGHTH SUPPLEMENTAL INDENTURE, dated as of July 14, 1997, between
Federated Department Stores, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (the "Company"), and State Street Bank
and Trust Company (successor to The First National Bank of Boston), a trust
company organized under the laws of the Commonwealth of Massachusetts, as
Trustee (the "Trustee"), supplementing that certain Indenture, dated as of
December 15, 1994, between the Company and the Trustee (the "Indenture").
RECITALS
A. The Company has duly authorized the execution and delivery of the
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes, or other evidences of indebtedness (the "Securities") to be
issued in one or more series as provided for in the Indenture.
B. The Indenture provides that the Securities of each series shall
be in substantially the form set forth in the Indenture, or in such other form
as may be established by or pursuant to a Board Resolution or in one or more
indentures supplemental thereto, in each case with such appropriate insertions,
omissions, substitutions, and other variations as are required or permitted by
the Indenture, and may have such letters, numbers, or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined to be required by the officers executing
such Securities, as evidenced by their execution thereof.
C. The Company and the Trustee have agreed that the Company shall
issue and deliver, and the Trustee shall authenticate, Securities denominated
"7.45% Senior Debentures due 2017" (the "Senior Debentures") pursuant to the
terms of this Supplemental Indenture and substantially in the form set forth
below, in each case with such appropriate insertions, omissions, substitutions,
and other variations as are required or permitted by the Indenture and this
Supplemental Indenture, and with such letters, numbers, or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of such Securities.
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[Form of Face of Security]
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 transferred to, or registered or
exchanged for Securities registered in the name of, any Person other than the
Depositary or a nominee thereof, and no such transfer may be registered, except
in the limited circumstances described in the Indenture. Every Security
authenticated and delivered upon registration of transfer of, or in exchange for
or in lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances.
FEDERATED DEPARTMENT STORES, INC.
7.45% SENIOR DEBENTURE DUE 2017
No. R- $______
Cusip No.
FEDERATED DEPARTMENT STORES, INC., a corporation duly organized and
existing under the laws of the State of Delaware (hereinafter called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of $ ______________on July 15,
2017 and to payinterest thereon from July 14, 1997 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semiannually on January 15 and July 15 of each year, commencing on January 15,
1998, at the rate of 7.45% per annum, until the principal hereof is paid or
made available for payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date shall, as provided in said
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 January 1 or July 1 (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 calendar days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all
as more fully provided in said Indenture.
Payment of the principal of and any such interest on this Security
shall be made at the office or agency of the Company maintained for the purpose
in New York, New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address appears in the Security Register.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS SET FORTH ON THE
REVERSE HEREOF. SUCH PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH IN THIS PLACE.
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This Security shall not be valid or become obligatory for any
purpose until the certificate of authentication herein has been signed manually
by the Trustee under said Indenture.
IN WITNESS WHEREOF, this instrument has been duly executed in
accordance with the Indenture.
FEDERATED DEPARTMENT STORES, INC.
Date Issued: July 14, 1997 By:______________________________
Attest:
By:___________________
[Form of Reverse of Security]
FEDERATED DEPARTMENT STORES, INC.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of December 15, 1994 (herein called the
"Indenture"), between the Company and State Street Bank and Trust Company, as
Trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, and immunities thereunder of the Company, the Trustee, and
the Holders of the Securities and of the terms upon which the Securities are,
and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
$300,000,000.
As a result of certain Sale and Leaseback transactions, the Company
may be required to repurchase this Security. In the event of the repurchase of
this Security in part only, a new Security or Securities of this series and of
like tenor for the portion hereof not so repurchased shall be issued in the name
of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of this Security or (b) certain restrictive covenants
and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth in the Indenture.
If 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
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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 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 shall have failed to institute such proceeding for 60 calendar
days after receipt of such notice, request, and offer of indemnity. The
foregoing shall 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 or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, 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 $1,000 and integral multiples thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
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Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee, and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security shall be overdue, and
neither the Company, the Trustee, nor any such agent shall be affected by notice
to the contrary.
Unless this Security is presented by an authorized representative of
The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the
Company or its agent for registration of transfer, exchange, or payment, and any
Security issued upon registration of transfer of, or in exchange for or in lieu
of, this Security is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL because the registered
owner hereof, Cede & Co., has an interest herein.
All terms used in this Security that are defined in the Indenture
shall have the respective meanings assigned to them in the Indenture.
D. The Trustee's certificate of authentication shall be in
substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:___________________________
Authorized Officer
E. All acts and things necessary to make the Senior Debentures, when
the Senior Debentures have been executed by the Company and authenticated by the
Trustee and delivered as provided in the Indenture and this Supplemental
Indenture, the valid, binding, and legal obligations of the Company and to
constitute these presents a valid indenture and agreement according to its
terms, have been done and performed, and the execution and delivery by the
Company of the Indenture and this Supplemental Indenture and the issue hereunder
of the Senior Debentures have in all respects been duly authorized; and the
Company, in the exercise of legal right and power in it vested, is executing and
delivering the Indenture and this Supplemental Indenture and proposes to make,
execute, issue, and deliver the Senior Debentures.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
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In order to declare the terms and conditions upon which the Senior
Debentures are authenticated, issued, and delivered, and in consideration of the
premises and of the purchase and acceptance of the Senior Debentures by the
Holders thereof, it is mutually agreed, for the equal and proportionate benefit
of the respective Holders from time to time of the Senior Debentures, as
follows:
ARTICLE I. ISSUANCE OF SENIOR DEBENTURES.
Section 1.1. Issuance of Senior Debentures; Principal Amount; Maturity.
(a) On July 14, 1997 the Company shall issue and deliver to the
Trustee, and the Trustee shall authenticate, Senior Debentures substantially in
the form set forth above, in each case with such appropriate insertions,
omissions, substitutions, and other variations as are required or permitted by
the Indenture and this Supplemental Indenture, and with such letters, numbers,
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such Senior
Debentures, as evidenced by their execution of such Senior Debentures.
(b) The Senior Debentures shall be issued in the aggregate principal
amount of $300,000,000 and shall mature on July 15, 2017.
Section 1.2. Interest on the Senior Debentures; Payment of Interest.
(a) The Senior Debentures shall bear interest at the rate of 7.45%
per annum from July 14, 1997, except in the case of Senior Debentures delivered
pursuant to Sections 2.05 or 2.07 of the Indenture, which shall bear interest
from the last Interest Payment Date through which interest has been paid.
(b) 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 a Senior Debenture (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 January 1 or July 1 (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 the Senior Debenture (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 calendar days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
(c) Payment of the principal of (and premium, if any) and any such
interest on the Senior Debentures shall be made at the office or agency of the
Company maintained for the purpose in New York, New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the
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Person entitled thereto as such address appears in the Security Register.
ARTICLE II. CERTAIN DEFINITIONS.
Section 2.1. Certain Definitions.
The terms defined in this Section 2.1 (except as herein otherwise
expressly provided or unless the context of this Supplemental Indenture
otherwise requires) for all purposes of this Supplemental Indenture and of any
indenture supplemental hereto have the respective meanings specified in this
Section 2.1. All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP. All other terms used in this
Supplemental Indenture that are defined in the Indenture or the Trust Indenture
Act, either directly or by reference therein (except as herein otherwise
expressly provided or unless the context of this Supplemental Indenture
otherwise requires), have the respective meanings assigned to such terms in the
Indenture or the Trust Indenture Act, as the case may be, as in force at the
date of this Supplemental Indenture as originally executed.
"Bank Facilities" means the financing provided for by the Credit
Agreement, dated as of December 19, 1994, among the Company, certain financial
institutions, Citibank, N.A., as administrative agent, and The Chase Manhattan
Bank (as successor to Chemical Bank), as agent, as the same may be amended,
supplemented, or otherwise modified from time to time.
"Cash Equivalent" means: (a) obligations unconditionally guaranteed
as to principal and interest by the United States of America or by any agency or
authority controlled or supervised by and acting as an instrumentality of the
United States of America; (b) obligations (including, but not limited to, demand
or time deposits, bankers' acceptances and certificates of deposit) issued by a
depository institution or trust company or a wholly owned Subsidiary or branch
office of any depository institution or trust company, provided that (i) such
depository institution or trust company has, at the time of the Company's or any
Restricted Subsidiary's investment therein or contractual commitment providing
for such investment, capital, surplus, or undivided profits (as of the date of
such institution's most recently published financial statements) in excess of
$100.0 million and (ii) the commercial paper of such depository institution or
trust company, at the time of the Company's or any Restricted Subsidiary's
investment therein or contractual commitment providing for such investment, is
rated at least A1 by S&P or P-1 by Moody's; (c) debt obligations (including, but
not limited to, commercial paper and medium term notes) issued or
unconditionally guaranteed as to principal and interest by any corporation,
state, or municipal government or agency or instrumentality thereof, or foreign
sovereignty, if the commercial paper of such corporation, state, or municipal
government or foreign sovereignty, at the time of the Company's or any
Restricted Subsidiary's investment therein or contractual commitment providing
for such investment, is rated at least A1 by S&P or P-1 by Moody's; (d)
repurchase obligations with a term of not more than seven calendar days for
underlying securities of the type described above entered into with a depository
institution or trust company meeting the qualifications described in clause (b)
above; and (e) Investments in money market or mutual funds that invest
predominantly in Cash Equivalents of the type described in clauses (a), (b),
(c), and (d) above; provided, however, that, in the case of clauses (a) through
(c) above, each such investment has a maturity of one year or less from the date
of acquisition thereof.
"Consolidated Net Tangible Assets" means total assets (less
depreciation and
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valuation reserves and other reserves and items deductible from gross book value
of specific asset accounts under GAAP) after deducting therefrom (i) all current
liabilities and (ii) all goodwill, trade names, trademarks, patents, unamortized
debt discount, organization expenses, and other like intangibles, all as set
forth on the most recent balance sheet of the Company and its consolidated
Subsidiaries and computed in accordance with GAAP.
"Effective Date" means December 19, 1994.
"Existing Indebtedness" means all Indebtedness under or evidenced
by: (a) the Senior Debentures; (b) the Company's 6.79% Senior Debentures due
2027; (c) the Company's 10% Senior Notes due 2001; (d) the Company's 8.125%
Senior Notes due 2002; (e) the Company's 5% Convertible Subordinated Notes due
2003; (f) the Company 8 1/2% Senior Notes due 2003; (g) the outstanding
principal amount of notes issued pursuant to the Loan Agreement, dated as of
December 30, 1987, by and among Allied Stores General Real Estate Company and
certain of its Subsidiaries and The Prudential Insurance Company of America; (h)
the outstanding principal amount of notes issued pursuant to the Mortgage Note
Agreement, dated as of the Effective Date, between Macy's Primary Real Estate,
Inc. and Federated Noteholding Corporation; (i) the outstanding principal amount
of notes issued pursuant to the Loan Agreement, dated as of May 26, 1994, by and
among Lazarus PA, Inc., PNC Bank Ohio, National Association, as agent, and the
financial institutions listed on the signature pages thereof; (j) the Capital
Lease Obligations of the Company and the Restricted Subsidiaries existing on the
date of the initial issuance of the Senior Debentures; (k) the outstanding
principal amount of uncertificated obligations of the Company owed to the
Internal Revenue Service and other taxing authorities; (l) the existing secured
mortgage debt of the Macy's Debtors assumed pursuant to the Plan; (m) the Note
Override Agreement, dated as of the Effective Date, by Kings Plaza Shopping
Center of Avenue U, Inc., as Issuer, and The Xxxx Xxxxxxx Mutual Life Insurance
Company ("Xxxx Xxxxxxx"), as Noteholder; (n) the outstanding principal amount of
the notes of Broadway Stores, Inc. ("Broadway") held by Federated Noteholding
Corporation II ("FNC II"); (o) the outstanding principal amount of mortgage
indebtedness of Broadway held by FNC II; (p) the outstanding principal amount of
mortgage indebtedness of Broadway to Bank of America; and (q) the other secured
Indebtedness of the Company or secured or unsecured Indebtedness of the
Restricted Subsidiaries existing on the date of the initial issuance of the
Senior Debentures.
"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit or capital contribution to (by means
of any transfer of cash or other property to others or any payment for property
or services for the account or use of others), or any purchase or acquisition by
such Person of any capital stock, bonds, notes, debentures, or other securities
or evidences of Indebtedness issued by any other Person. The amount of any
Investment shall be the original cost thereof, plus the cost of all additions
thereto, without any adjustments for increases or decreases in value, write-ups,
write-downs, or write-offs with respect to such Investment.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
security interest, or preference, priority, or other security agreement or
preferential arrangement of any kind or nature whatsoever intended to assure
payment of any Indebtedness or other obligation, including without limitation
any conditional sale, deferred purchase price, or other title retention
agreement, the interest of a lessor under a Capital Lease Obligation, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing, under the Uniform Commercial Code or comparable law
of any jurisdiction, of any financing statement naming the owner of the asset to
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which such Lien relates as debtor.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to
the rating agency business thereof.
"Notice" means, with respect to an Offer to Purchase, a written
notice stating:
(a) the Section of this Supplemental Indenture pursuant to which
such Offer to Purchase is being made;
(b) the applicable Purchase Amount (including, if less than all the
Senior Debentures, the calculation thereof pursuant to the Section hereof
requiring such Offer to Purchase);
(c) the applicable Purchase Date;
(d) the purchase price to be paid by the Company for each $1,000
principal amount at maturity of Senior Debentures accepted for payment (as
specified in this Supplemental Indenture);
(e) that the Holder of any Senior Debenture may tender for purchase
by the Company all or any portion of such Senior Debenture equal to $1,000
principal amount or any integral multiple thereof;
(f) the place or places where Senior Debentures are to be
surrendered for tender pursuant to such Offer to Purchase;
(g) any Senior Debenture not tendered or tendered but not purchased
by the Company pursuant to such Offer to Purchase shall continue to accrue
interest as set forth in such Senior Debenture and this Supplemental
Indenture;
(h) that on the Purchase Date the purchase price shall become due
and payable upon each Senior Debenture (or portion thereof) selected for
purchase pursuant to such Offer to Purchase and that interest thereon
shall cease to accrue on and after the Purchase Date;
(i) that each Holder electing to tender a Senior Debenture pursuant
to such Offer to Purchase shall be required to surrender such Senior
Debenture at the place or places specified in the Notice prior to the
close of business on the fifth Business Day prior to the Purchase Date
(such Senior Debenture being, if the Company or the Trustee so requires,
duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or its attorney duly authorized in writing);
(j) that (i) if Senior Debentures (or portions thereof) in an
aggregate principal amount less than or equal to the Purchase Amount are
duly tendered and not withdrawn pursuant to such Offer to Purchase, the
Company shall purchase all such Senior Debentures and (ii) if Senior
Debentures in an aggregate principal amount in excess of the Purchase
Amount are duly tendered and not withdrawn pursuant to such Offer to
Purchase, (A) the
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Company shall purchase Senior Debentures having an aggregate principal
amount equal to the Purchase Amount and (B) the particular Senior
Debentures (or portions thereof) to be purchased shall be selected by such
method as the Trustee shall deem fair and appropriate and which may
provide for the selection for purchase of portions (equal to $1,000 or an
integral multiple of $1,000) of the principal amount of Senior Debentures
of a denomination larger than $1,000;
(k) that, in the case of any Holder whose Senior Debenture is
purchased only in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Senior Debenture without
service charge, a new Senior Debenture or Senior Debenture of any
authorized denomination as requested by such Holder in an aggregate
principal amount equal to and in exchange for the unpurchased portion of
the Senior Debenture so tendered; and
(l) any other information required by applicable law to be included
therein.
"Offer to Purchase" means an offer to purchase Senior Debentures
pursuant to and in accordance with a Notice, in the aggregate Purchase Amount,
on the Purchase Date, and at the purchase price specified in such Notice (as
determined pursuant to this Supplemental Indenture). Any Offer to Purchase shall
remain open from the time of mailing of the Notice until the Purchase Date, and
shall be governed by and effected in accordance with, and the Company and the
Trustee shall perform their respective obligations specified in, the Notice for
such Offer to Purchase.
"Permitted Liens" means: (a) Liens (other than Liens on inventory)
securing (A) Existing Indebtedness; (B) Indebtedness under the Bank Facilities
in an aggregate principal amount at any one time not to exceed $2,800.0 million,
less (i) principal payments actually made by the Company on any term loan
facility under such Bank Facilities (other than principal payments made in
connection with or pursuant to a refinancing of the Bank Facilities in
compliance with clause (a)(I) below) and (ii) any amounts by which any revolving
credit facility commitments under the Bank Facilities are permanently reduced
(other than permanent reductions made in connection with or pursuant to a
refinancing of the Bank Facilities in compliance with clause (a)(I) below)
except that under no circumstances shall the total allowable indebtedness under
this clause (B) be less than $1,250.0 million (subject to increase from and
after the date hereof at a rate, compounded annually, equal to 3% per annum) if
incurred for the purpose of providing the Company and its Subsidiaries with
working capital, including without limitation, bankers' acceptances, letters of
credit, and similar assurances of payment whether as part of the Bank Facilities
or otherwise; (C) Indebtedness existing as of the date of the initial issuance
of Senior Debentures of any Subsidiary of the Company engaged primarily in the
business of owning or leasing real property; (D) Indebtedness incurred for the
purpose of financing store construction and remodeling or other capital
expenditures; (E) Indebtedness in respect of the deferred purchase price of
property or arising under any conditional sale or other title retention
agreement; (F) Indebtedness of a Person acquired by the Company or a Subsidiary
of the Company at the time of such acquisition; (G) to the extent deemed to be
"Indebtedness," obligations under swap agreements, cap agreements, collar
agreements, insurance arrangements, or any other agreement or arrangement, in
each case designed to provide protection against fluctuations in interest rates,
the cost of currency or the cost of goods (other than inventory); (H) other
Indebtedness in outstanding amounts not to exceed, in the aggregate, the greater
of $750.0 million and 12.5% of Consolidated Net Tangible Assets of the Company
and the Restricted Subsidiaries at any particular time; and (I) Indebtedness
incurred in connection with any extension, renewal, refinancing, replacement, or
refunding (including successive extensions,
11
renewals, refinancings, replacements, or refundings), in whole or in part, of
any Indebtedness of the Company or the Restricted Subsidiaries; provided,
however, that the principal amount of the Indebtedness so incurred does not
exceed the sum of the principal amount of the Indebtedness so extended, renewed,
refinanced, replaced, or refunded, plus all interest accrued thereon and all
related fees and expenses (including any payments made in connection with
procuring any required lender or similar consents); (b) Liens incurred and
pledges and deposits made in the ordinary course of business in connection with
liability insurance, workers' compensation, unemployment insurance, old-age
pensions, and other social security benefits other than in respect of employee
benefit plans subject to the Employee Retirement Income Security Act of 1974, as
amended; (c) Liens securing performance, surety, and appeal bonds and other
obligations of like nature incurred in the ordinary course of business; (d)
Liens on goods and documents securing trade letters of credit; (e) Liens imposed
by law, such as carriers', warehousemen's, mechanics', materialmen's, and
vendor's Liens, incurred in the ordinary course of business and securing
obligations which are not yet due or which are being contested in good faith by
appropriate proceedings; (f) Liens securing the payment of taxes, assessments,
and governmental charges or levies, either (i) not delinquent or (ii) being
contested in good faith by appropriate legal or administrative proceedings and
as to which adequate reserves shall have been established on the books of the
relevant Person in conformity with GAAP; (g) zoning restrictions, easements,
rights of way, reciprocal easement agreements, operating agreements, covenants,
conditions, or restrictions on the use of any parcel of property that are
routinely granted in real estate transactions or do not interfere in any
material respect with the ordinary conduct of the business of the Company and
its Subsidiaries or the value of such property for the purpose of such business;
(h) Liens on property existing at the time such property is acquired; (i)
purchase money Liens upon or in any property acquired or held in the ordinary
course of business to secure Indebtedness incurred solely for the purpose of
financing the acquisition of such property; (j) Liens on the assets of any
Subsidiary of the Company at the time such Subsidiary is acquired; (k) Liens
with respect to obligations in outstanding amounts not to exceed $100.0 million
at any particular time and that (i) are not incurred in connection with the
borrowing of money or obtaining advances or credit (other than trade credit in
the ordinary course of business) and (ii) do not in the aggregate interfere in
any material respect with the ordinary conduct of the business of the Company
and its Subsidiaries; and (l) without limiting the ability of the Company or any
Restricted Subsidiary to create, incur, assume, or suffer to exist any Lien
otherwise permitted under any of the foregoing clauses, any extension, renewal,
or replacement, in whole or in part, of any Lien described in the foregoing
clauses; provided, however, that any such extension, renewal, or replacement
Lien is limited to the property or assets covered by the Lien extended, renewed,
or replaced or substitute property or assets, the value of which is determined
by the Board of Directors of the Company to be not materially greater than the
value of the property or assets for which the substitute property or assets are
substituted.
"Plan" means the Amended Joint Plan of Reorganization of X.X. Xxxx &
Co., Inc. and certain of its Subsidiaries.
"Purchase Amount" means the aggregate outstanding principal amount
of the Senior Debentures required to be offered to be purchased by the Company
pursuant to an Offer to Purchase.
"Purchase Date" means, with respect to any Offer to Purchase, a date
specified by the Company in such Offer to Purchase not less than 30 calendar
days or more than 60 calendar days after the date of the mailing of the Notice
of such Offer to Purchase (or such other time period as is necessary for the
Offer to Purchase to remain open for a sufficient period of time to comply
12
with applicable securities laws).
"Restricted Subsidiary" means any direct or indirect subsidiary (as
that term is defined in Regulation S-X promulgated by the Securities and
Exchange Commission) other than an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Service, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor to the rating agency business
thereof.
"Sale and Leaseback Transaction" means, with respect to any Person,
an arrangement with any bank, insurance company, or other lender or investor or
to which such lender or investor is a party providing for the leasing pursuant
to a Capital Lease by such Person or any Subsidiary of such Person of any
property or asset of such Person or such Subsidiary which has been or is being
sold or transferred by such Person or such Subsidiary to such lender or investor
or to any Person to whom funds have been or are to be advanced by such lender or
investor on the security of such property or asset.
"Senior Indebtedness" means any Indebtedness of the Company or its
Subsidiaries other than Subordinated Indebtedness.
"Significant Subsidiary" means any Subsidiary which accounts for (a)
10.0% or more of the total consolidated assets of the Company and its
Subsidiaries as of any date of determination or (b) 10.0% or more of the total
consolidated revenues of the Company and its Subsidiaries for the most recently
concluded fiscal quarter.
"Subordinated Indebtedness" means any Indebtedness of the Company
which is expressly subordinated in right of payment to the Senior Debentures.
"Unrestricted Subsidiary" means (a) FDS National Bank, FACS Group,
Inc., Federated Credit Holdings Corporation, Prime Credit Card Master Trust (to
the extent that it is deemed to be a Subsidiary), Prime Credit Card Master Trust
II (to the extent it is deemed to be a Subsidiary), Prime Receivables
Corporation, Prime II Receivables Corporation, Seven Hills Funding Corporation,
Ridge Capital Trust II (to the extent that it is deemed to be a Subsidiary),
Macy Financial, Inc., X.X. Xxxx Overseas Finance, N.V., Macy Credit Corp., and
Macy's Data and Credit Services Corp., (b) any Subsidiary of the Company the
primary business of which consists of, and is restricted by the charter,
partnership agreement, or similar organizational document of such Subsidiary to,
financing operations on behalf of the Company and its Subsidiaries, and/or
purchasing accounts receivable or direct or indirect interests therein, and/or
making loans secured by accounts receivable or direct or indirect interests
therein (and business related to the foregoing), or which is otherwise primarily
engaged in, and restricted by its charter, partnership agreement, or similar
organizational document to, the business of a finance company (and business
related thereto), which, in accordance with the provisions of this Supplemental
Indenture, has been designated by Board Resolution as an Unrestricted
Subsidiary, in each case unless and until any of the Subsidiaries of the Company
referred to in the foregoing clauses (a) and (b) is, in accordance with the
provisions of this Supplemental Indenture, designated by a Board Resolution as a
Restricted Subsidiary, and (c) any Subsidiary of the Company of which, in the
case of a corporation, more than 50% of the issued and outstanding capital stock
having ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation has or might have voting
13
power upon the occurrence of any contingency), or, in the case of any
partnership or other legal entity, more than 50% of the ordinary equity capital
interests, is at the time directly or indirectly owned or controlled by one or
more Unrestricted Subsidiaries and the primary business of which consists of,
and is restricted by the charter, partnership agreement, or similar
organizational document of such Subsidiary to, financing operations on behalf of
the Company and its Subsidiaries, and/or purchasing accounts receivable or
direct or indirect interests therein, and/or making loans secured by accounts
receivable or direct or indirect interests therein (and business related to the
foregoing), or which is otherwise primarily engaged in, and restricted by its
charter, partnership agreement or similar organizational document to, the
business of a finance company (and business related thereto).
ARTICLE III. CERTAIN COVENANTS.
The following covenants shall be applicable to the Company for so
long as any of the Senior Debentures are Outstanding. Nothing in this paragraph
will, however, affect the Company's obligations under any provision of the
Indenture or, except for Article III hereof, this Supplemental Indenture.
Section 3.1. Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, create, incur, assume, or suffer to exist any Liens upon any of
their respective assets, other than Permitted Liens, unless the Senior
Debentures are secured by an equal and ratable Lien on the same assets.
Section 3.2. Sale and Leaseback Transactions.
The Company shall not, and shall not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction unless the net cash
proceeds therefrom are applied as follows: to the extent that the aggregate
amount of cash proceeds (net of all legal, title, and recording tax expenses,
commissions, and other fees and expenses incurred, and all federal, state,
provincial, foreign, and local taxes and reserves required to be accrued as a
liability, as a consequence of such Sale and Leaseback Transaction, net of all
payments made on any Indebtedness which is secured by the assets subject to such
Sale and Leaseback Transaction in accordance with the terms of any Liens upon or
with respect to such assets or which must by the terms of such Lien, or in order
to obtain a necessary consent to such Sale and Leaseback Transaction or by
applicable law be repaid out of the proceeds from such Sale and Leaseback
Transaction, and net of all distributions and other payments made to minority
interest holders in Subsidiaries or joint ventures as a result of such Sale and
Leaseback Transaction) from such Sale and Leaseback Transaction that shall not
have been reinvested in the business of the Company or its Subsidiaries or used
to reduce Senior Indebtedness of the Company or its Subsidiaries within 12
months of the receipt of such proceeds (with Cash Equivalents being deemed to be
proceeds upon receipt of such Cash Equivalents and cash payments under
promissory notes secured by letters of credit or similar assurances of payment
issued by commercial banks of recognized standing being deemed to be proceeds
upon receipt of such payments) shall exceed $100.0 million ("Excess Sale
Proceeds") from time to time, the Company shall offer to repurchase pursuant to
an Offer to Purchase Senior Debentures with such Excess Sale
14
Proceeds (on a pro rata basis with any other Senior Indebtedness of the Company
or its Subsidiaries required by the terms of such Indebtedness to be repurchased
with such Excess Sale Proceeds, based on the principal amount of such Senior
Indebtedness required to be repurchased) at 100% of principal amount, plus
accrued and unpaid interest, and to pay related costs and expenses. Such Offer
to Purchase shall be made by mailing of a Notice to the Trustee and to each
Holder at the address appearing in the Security Register, by first class mail,
postage prepaid, by the Company or, at the Company's request, by the Trustee in
the name and at the expense of the Company, on a date selected by the Company
not later than 12 months from the date such Offer to Purchase is required to be
made pursuant to the immediately preceding sentence. To the extent that the
aggregate purchase price for Senior Debentures or other Senior Indebtedness
tendered pursuant to such offer to repurchase is less than the aggregate
purchase price offered in such offer, an amount of Excess Sale Proceeds equal to
such shortfall shall cease to be Excess Sale Proceeds and may thereafter be used
for general corporate purposes. On the Purchase Date, the Company shall (i)
accept for payment Senior Debentures or portions thereof tendered pursuant to
the Offer to Purchase in an aggregate principal amount equal to the Purchase
Amount (selected by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for purchase of portions (equal to
$1,000 or an integral multiple of $1,000) of the principal amount of Senior
Debentures of a denomination larger than $1,000), (ii) deposit with the Paying
Agent money sufficient to pay the purchase price of all Senior Debentures or
portions thereof so accepted, and (iii) deliver to the Trustee Senior Debentures
so accepted. The Paying Agent shall promptly mail to the Holders of Senior
Debentures so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly authenticate and mail to such Holders a new Senior
Debenture equal in principal amount to any unpurchased portion of each Senior
Debenture surrendered.
Election of the Offer to Purchase by a Holder shall (unless
otherwise provided by law) be irrevocable. The payment of accrued interest as
part of any repurchase price on any Purchase Date shall be subject to the right
of Holders of record on the relevant Regular Record Date to receive interest due
on an Interest Payment Date that is on or prior to such Purchase Date.
If an Offer to Purchase Senior Debentures is made, the Company shall
comply with all tender offer rules, including but not limited to Section 14(e)
under the Exchange Act and Rule 14e-1 thereunder, to the extent applicable to
such Offer to Purchase.
Section 3.3. Permitting Unrestricted Subsidiaries to Become Restricted
Subsidiaries.
The Company shall not permit any Unrestricted Subsidiary to be
designated as a Restricted Subsidiary unless such Subsidiary has outstanding no
Indebtedness except such Indebtedness as the Company could permit it to become
liable for immediately after becoming a Restricted Subsidiary and such
Subsidiary is otherwise in compliance with all provisions of the Indenture and
this Supplemental Indenture that apply to Restricted Subsidiaries.
Section 3.4. Payment Office.
The Company shall cause a Payment Office for the Senior Debentures
to be maintained at all times in New York, New York.
15
ARTICLE IV. ADDITIONAL EVENTS OF DEFAULT.
Section 4.1. Additional Events of Default.
In addition to the Events of Default set forth in the Indenture, the
term "Event of Default," whenever used in the Indenture or this Supplemental
Indenture with respect to the Senior Debentures, means any one of the following
events (whatever the reason for such Event of Default and whether it may be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree, or order of any court or any order, rule, or regulation of any
administrative or governmental body):
(a) the failure to redeem the Senior Debentures when required
pursuant to the terms and conditions thereof or to pay the repurchase
price for Senior Debentures to be repurchased in accordance with Section
3.2 of this Supplemental Indenture;
(b) any nonpayment at maturity or other default is made under any
agreement or instrument relating to any other Indebtedness of the Company
or any Restricted Subsidiary (the unpaid principal amount of which is not
less than $100.0 million), and, in any such case, such default (i)
continues beyond any period of grace provided with respect thereto and
(ii) results in such Indebtedness becoming due prior to its stated
maturity or occurs at the final maturity of such Indebtedness; provided,
however, that, subject to the provisions of Section 9.01 and 8.08 of the
Indenture, the Trustee shall not be deemed to have knowledge of such
nonpayment or other default unless either (1) a Responsible Officer of the
Trustee has actual knowledge of nonpayment or other default or (2) the
Trustee has received written notice thereof from the Company, from any
Holder, from the holder of any such Indebtedness or from the trustee under
the agreement or instrument, relating to such Indebtedness;
(c) the entry of one or more judgments or orders for the payment of
money against the Company or any Restricted Subsidiary, which judgments
and orders create a liability of $100.0 million or more in excess of
insured amounts and have not been stayed (by appeal or otherwise),
vacated, discharged, or otherwise satisfied within 60 calendar days of the
entry of such judgments and orders; and
(d) Events of Default of the type and subject to the conditions set
forth in clauses (vi) and (vii) of Section 8.01(a) of the Indenture in
respect of any Significant Subsidiary or, in related events, any group of
Subsidiaries which, if considered in the aggregate, would be a Significant
Subsidiary of the Company.
ARTICLE V. DEFEASANCE.
Section 5.1. Applicability of Article V of the Indenture.
(a) The Senior Debentures shall be subject to Defeasance and
Covenant Defeasance as provided in Article V of the Indenture; provided,
however, that no Defeasance or Covenant Defeasance shall be effective unless and
until:
16
(i) there shall have been delivered to the Trustee the
opinion of a nationally recognized independent public accounting firm
certifying the sufficiency of the amount of the moneys, U.S. Government
Obligations, or a combination thereof, placed on deposit to pay, without
regard to any reinvestment, the principal of and any premium and interest
on the Senior Debentures on the Stated Maturity thereof or on any earlier
date on which the Senior Debentures shall be subject to redemption;
(ii) there shall have been delivered to the Trustee the
certificate of a Responsible Officer of the Company certifying, on behalf
of the Company, to the effect that such Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or constitute a default
under, any agreement to which the Company is a party or violate any law to
which the Company is subject; and
(iii) No Event of Default or event that (after notice or
lapse of time or both) would become an Event of Default shall have
occurred and be continuing at the time of such deposit or, with regard to
any Event of Default or any such event specified in Sections 8.01(a)(vi)
and (vii), at any time on or prior to the 124th calendar day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until after such 124th calendar day).
(b) Upon the exercise of the option provided in Section 5.01 of the
Indenture to have Section 5.03 of the Indenture applied to the Outstanding
Senior Debentures, in addition to the obligations from which the Company shall
be released specified in the Indenture, the Company shall be released from its
obligations under Article III hereof.
ARTICLE VI. MISCELLANEOUS.
Section 6.1. Reference to and Effect on the Indenture.
This Supplemental Indenture shall be construed as supplemental to
the Indenture and all the terms and conditions of this Supplemental Indenture
shall be deemed to be part of the terms and conditions of the Indenture. Except
as set forth herein, the Indenture heretofore executed and delivered is hereby
(i) incorporated by reference in this Supplemental Indenture and (ii) ratified,
approved and confirmed.
Section 6.2. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision, or condition set forth in Article III hereof if the Holders of
a majority in principal amount of the Outstanding Senior Notes 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 duties of the Trustee in respect of any such term,
provision, or condition shall remain in full force and effect.
Section 6.3. Supplemental Indenture May be Executed In Counterparts.
17
This instrument may be executed in any number of counterparts, each
of which shall be an original; but such counterparts shall together constitute
but one and the same instrument.
Section 6.4. Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
18
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
[Seal] FEDERATED DEPARTMENT STORES, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and
Treasurer
Attest:
/s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: OVP and Assistant Treasurer
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
-----------------------------------
Name:
Title:
Attest:
------------------------------------
Name:
Title:
19
STATE OF OHIO )
) ss.:
COUNTY OF XXXXXXXX )
On this 11th day of July, 1997, before me personally came , to me
known, who, being by me duly sworn, did depose and say that he/she is a
____________________________ of FEDERATED DEPARTMENT STORES, INC., one of the
entities described in and which executed the above instrument; that he/she knows
the seal of said entity; that the seal or a facsimile thereof affixed to said
instrument is such seal; that it was so affixed by authority of the Board of
Directors of said entity, and that he/she signed his/her name thereto by like
authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
--------------------------
Notary Public
20
COMMONWEALTH OF MASSACHUSETTS )
) ss.:
COUNTY OF SUFFOLK )
On this ____ day of July, 1997, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he/she is a __________________________ of STATE STREET BANK AND
TRUST COMPANY, one of the entities described in and which executed the above
instrument; that he/she knows the seal of said entity; that the seal or a
facsimile thereof affixed to said instrument is such seal; that it was so
affixed by authority of the Board of Directors of said entity, and that he/she
signed his/her name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
--------------------------
Notary Public
