As filed with the Securities and
Exchange Commission on November 2, 2006
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FEDERATED DEPARTMENT STORES,
INC.
(Exact Name of Registrant as
Specified in Its Charter)
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Delaware
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13-3324058
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(State or Other Jurisdiction
of
Incorporation or Organization)
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(I.R.S. Employer
Identification Number)
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7 West Seventh
Street
Cincinnati, Ohio 45202
(513) 579-7000
(Address, Including Zip Code,
and Telephone Number, Including Area Code, of Registrants
Principal Executive Offices)
FEDERATED RETAIL HOLDINGS,
INC.
(Exact Name of Registrant as
Specified in Its Charter)
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New York
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43-0398035
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(State or Other Jurisdiction
of
Incorporation or Organization)
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(I.R.S. Employer
Identification Number)
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7 West Seventh
Street
Cincinnati, Ohio 45202
(513) 579-7000
(Address, Including Zip Code,
and Telephone Number, Including Area Code, of Registrants
Principal Executive Offices)
Dennis J.
Broderick, Esq.
Senior Vice President, General
Counsel and Secretary
Federated Department Stores,
Inc.
7 West Seventh
Street
Cincinnati, Ohio 45202
(513) 579-7000
(Name, Address, Including Zip
Code, and Telephone Number, Including Area Code of Agent For
Service)
With copies to:
Mark E.
Betzen, Esq.
Jones Day
2727 North Harwood
Street
Dallas, Texas 75201
(214) 220-3939
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective
date of this registration statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
o
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box.
þ
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
o
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box.
þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following box.
o
CALCULATION
OF REGISTRATION FEE
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Proposed
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Amount of
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Title of Each Class of
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Amount to be
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Maximum Aggregate
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Registration
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Securities to be Registered
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Registered(1)
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Offering Price(1)
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Fee
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Debt Securities of Federated Retail
Holdings, Inc.
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Common Stock, par value
$0.01 per share, of Federated Department Stores, Inc.
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Preferred Stock, par value
$0.01 per share, of Federated Department Stores, Inc.
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Depositary Shares of Federated
Department Stores, Inc.(2)
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Warrants
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Purchase Contracts
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Units(3)
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Guarantees of Debt Securities of
Federated Retail Holdings, Inc. by Federated Department Stores,
Inc.
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Total
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$2,000,000,000
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$2,000,000,000(4)
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$214,000
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(1)
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An indeterminate number of the
securities of each identified class is being registered as may
from time to time be offered for sale at indeterminate prices,
with an aggregate public offering price not to exceed
$2,000,000,000.
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(2)
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Each depositary share will be
issued under a deposit agreement, will represent an interest in
a fractional share or multiple shares of preferred stock of
Federated Department Stores, Inc. and will be evidenced by a
depositary receipt.
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(3)
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Each unit will be issued under a
unit agreement or indenture and will represent an interest in a
combination of any two or more of the securities being
registered hereby or debt obligations of third parties,
including U.S. Treasury securities.
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(4)
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Estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(o).
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PROSPECTUS
FEDERATED
DEPARTMENT STORES, INC.
Common
Stock
Preferred Stock
Depositary Shares
Warrants
Purchase Contracts
Units
Guarantees of Debt Securities
FEDERATED
RETAIL HOLDINGS, INC.
Debt
Securities
Warrants
Purchase Contracts
Units
$2,000,000,000
Federated Department Stores, Inc., referred to as
Federated,
and/or
Federated Retail Holdings, Inc., a wholly owned subsidiary of
Federated referred to as Federated Holdings, may
offer from time to time to sell, in one or more series, any
combination of the securities described in this prospectus. Such
securities may be offered and sold by us in one or more
offerings with a total aggregate principal amount or initial
purchase price not to exceed $2,000,000,000.
We may offer and sell these securities to or through one or more
underwriters, dealers and agents, or directly to purchasers, on
a continuous or delayed basis.
The principal executive offices of Federated and Federated
Holdings are located at 7 West Seventh Street, Cincinnati,
Ohio 45202, and the telephone number for each is
(513) 579-7000.
This prospectus describes some of the general terms that may
apply to these securities. The specific terms of any securities
to be offered will be described in a supplement to this
prospectus.
Neither the Securities and Exchange Commission nor any other
regulatory body has approved or disapproved of these securities
or passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
The date of this prospectus is November 2, 2006
TABLE OF
CONTENTS
The registration statement containing this prospectus,
including the exhibits to the registration statement, provides
additional information about us and the securities offered under
this prospectus. The registration statement, including the
exhibits and the documents incorporated herein by reference, can
be read on the Securities and Exchange Commission website or at
the Securities and Exchange Commission offices mentioned under
the heading Where You Can Find More Information.
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, or the SEC,
using a shelf registration process. Under this shelf
process, we may sell from time to time the securities described
in this prospectus in one or more offerings up to a total
aggregate principal amount or initial purchase price of
$2,000,000,000.
This prospectus provides you with a general description of the
securities. Each time we offer the securities, we will provide a
prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement may
also supplement, modify or supersede other information contained
in this prospectus. You should read both this prospectus and any
prospectus supplement together with the information incorporated
by reference as described below under the heading
Incorporation by Reference.
You should rely only on the information provided in this
prospectus and in any prospectus supplement, including the
information incorporated by reference. We have not authorized
anyone to provide you with different information. We are not
offering the securities in any state where the offer is not
permitted. You should not assume that the information in this
prospectus, or any supplement to this prospectus, is accurate at
any date other than the date indicated on the cover page of
these documents.
Unless the context implies otherwise, references in this
prospectus to we, us or our
are references to either Federated or Federated Holdings or both.
WHERE YOU
CAN FIND MORE INFORMATION
Federated files annual, quarterly and current reports, proxy
statements and other information with the SEC. Federateds
SEC filings are available to the public from the SECs
website at
www.sec.gov
or from Federateds website
at
www.fds.com
. You may also read and copy any document
Federated files at the SECs public reference room in
Washington, D.C., located at 100 F Street, N.E.,
Room 1580, Washington, D.C. 20549. Please call the SEC
at
1-800-SEC-0330
for further information on the public reference room.
Information about Federated is also available at
Federateds website at
www.fds.com
. However, the
information on that website is not part of this prospectus.
INCORPORATION
BY REFERENCE
The SEC allows us to incorporate by reference in
this prospectus the information in the documents that Federated
files with it, which means that we can disclose important
information to you by referring you to those documents. The
information incorporated by reference is considered to be a part
of this prospectus. Any information that is part of this
prospectus or any prospectus supplement that speaks as of a
later date than any other information that is part of this
prospectus or any prospectus supplement updates or supersedes
such other information. We incorporate by reference in this
prospectus the documents listed below and any future documents
or portions thereof that Federated files with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 on or after the date of this prospectus
until we sell all of the securities that may be offered by this
prospectus.
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Federateds Annual Report on
Form 10-K
for the fiscal year ended January 28, 2006, as amended;
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Federateds Quarterly Reports on
Form 10-Q
for the fiscal quarters ended April 29, 2006 and
July 29, 2006;
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Federateds Current Reports on
Form 8-K
filed on March 28, 2006, March 30, 2006,
March 31, 2006, April 10, 2006, May 3, 2006,
May 24, 2006, June 1, 2006, June 6, 2006,
June 9, 2006, June 21, 2006, June 22, 2006,
July 13, 2006, August 29, 2006, September 1,
2006, October 3, 2006 and November 2, 2006;
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Description of Federateds common stock, par value
$0.01 per share, contained in Federateds Registration
Statement on
Form 8-A
filed on December 12, 1994;
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Item 8 of the Annual Report on
Form 10-K
for the fiscal year ended January 29, 2005, as amended, of
The May Department Stores Company, a Delaware corporation
(May); and
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Item 1 of Mays Quarterly Report on
Form 10-Q
for each of the fiscal quarters ended April 30, 2005 and
July 30, 2005.
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You may obtain, free of charge, a copy of any of these documents
(other than exhibits to these documents unless the exhibits are
specifically incorporated by reference into these documents or
referred to in this prospectus) by writing or calling us at the
following address and telephone number:
Federated Department Stores, Inc.
7 West Seventh Street
Cincinnati, Ohio 45202
Attention: Investor Relations
(513) 579-7780
FORWARD-LOOKING
STATEMENTS
Some of the statements made and information contained in this
prospectus and the documents we incorporate by reference,
excluding historical information, are forward-looking
statements as defined in the Private Securities Litigation
Reform Act of 1995, the Securities Act of 1933 and the
Securities Exchange Act of 1934. Forward-looking statements give
our current expectations or forecasts of future events. Words
such as may, assume,
forecast, position, predict,
strategy, expect, intend,
plan, estimate, anticipate,
believe, project, budget,
potential, or continue, and similar
expressions are used to identify forward-looking statements.
They can be affected by assumptions used or by known or unknown
risks or uncertainties. Consequently, no forward-looking
statements can be guaranteed. Actual results may vary
materially. You are cautioned not to place undue reliance on any
forward-looking statements. You should also understand that it
is not possible to predict or identify all such factors and
should not consider the following list to be a complete
statement of all potential risks and uncertainties. Any of the
following factors may impact the achievement of results:
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risks and uncertainties relating to the possible invalidity of
the underlying beliefs and assumptions;
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possible changes or developments in social, economic, business,
industry, market, legal and regulatory circumstances and
conditions;
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actions taken or omitted to be taken by third parties, including
customers, suppliers, business partners, competitors and
legislative, regulatory, judicial and other governmental
authorities and officials; and
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attacks or threats of attacks by terrorists or war.
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Without limiting the generality of the foregoing,
forward-looking statements regarding the effects of the
acquisition of May by Federated are subject to risks and
uncertainties relating to, among other things, the successful
and timely integration of the acquired businesses with our
historical businesses, timely realization of expected cost
savings and other synergies, and potential disruption from the
transaction which could make it more difficult to maintain
relationships with the companies respective employees,
customers and vendors.
No forward-looking statements should be relied upon as
continuing to reflect the expectations of management or the
current status of any matter referred to therein as of any date
subsequent to the date on which such statements are made.
Furthermore, future results of the operations of Federated
and/or
Federated Holdings could differ materially from historical
results or current expectations because of a variety of factors
that affect Federated and its consolidated subsidiaries,
including:
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the acquisition of May;
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transaction costs associated with the renovation, conversion and
transitioning of retail stores in regional markets;
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the outcome and timing of sales and leasing in conjunction with
the disposition of retail store properties;
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the retention, reintegration and transitioning of displaced
employees;
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the sale of Federateds credit card operations and related
strategic alliance;
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competitive pressures from department and specialty stores,
general merchandise stores, manufacturers outlets,
off-price and discount stores, and all other retail channels,
including the Internet, mail-order catalogs and television; and
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general consumer-spending levels, including the impact of the
availability and level of consumer debt, levels of consumer
confidence and the effects of the weather.
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This list of factors is not exhaustive, and new factors may
emerge or changes to these factors may occur that would impact
our business. Additional information regarding these and other
factors may be contained in Federateds filings with the
SEC, especially on
Forms 10-K,
10-Q
and
8-K.
All
such risk factors are difficult to predict, contain material
uncertainties that may affect actual results and may be beyond
our control.
DESCRIPTION
OF DEBT SECURITIES
General
The debt securities that we may offer by this prospectus consist
of unsecured notes, debentures, or other evidences of
indebtedness of Federated Holdings, a wholly-owned subsidiary of
Federated, which securities we refer to as debt
securities. Federated Holdings may issue debt securities
in one or more series under an indenture, dated as of
November 2, 2006, among Federated Holdings, as issuer,
Federated, as guarantor, and U.S. Bank National
Association, as trustee. A copy of the indenture is filed as
Exhibit 4.6 to the registration statement of which this
prospectus is a part and is incorporated herein by reference.
Except as otherwise defined in this prospectus, capitalized
terms used in this prospectus have the meanings given to them in
the indenture.
The provisions of the indenture will generally be applicable to
all of the debt securities. Selected provisions of the indenture
are described in this prospectus. Additional or different
provisions that are applicable to a particular series of debt
securities will, if material, be described in a prospectus
supplement relating to the offering of debt securities of that
series. These provisions may include, among other things and to
the extent applicable, the following:
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the title of the debt securities;
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the extent, if any, to which the debt securities are
subordinated in right of payment to other indebtedness of
Federated Holdings;
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any limit on the aggregate principal amount of the debt
securities;
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any subordination provisions or other limitations applicable to
guarantees of the debt securities;
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the persons to whom any interest on the debt securities will be
payable, if other than the registered holders thereof on the
regular record date therefor;
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the date or dates on which the principal of the debt securities
will be payable;
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the rate or rates at which the debt securities will bear
interest, if any, and the date or dates from which interest will
accrue;
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the dates on which interest, if any, will be payable and the
regular record dates for interest payment dates;
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the place or places where the principal of and any premium and
interest on the debt securities will be payable;
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the period or periods, if any, within which, and the price or
prices at which, the debt securities may be redeemed, in whole
or in part, at the option of Federated Holdings;
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the obligation, if any, of Federated Holdings to redeem or
purchase the debt securities pursuant to sinking fund or similar
provisions and the terms and conditions of any such redemption
or purchase;
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the denominations in which the debt securities will be issuable,
if other than denominations of $1,000 and any integral multiple
thereof;
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the currency, currencies or currency units, if other than
currency of the United States of America, in which payment of
the principal of and any premium or interest on the debt
securities will be payable, and the terms and conditions of any
elections that may be made available with respect thereto;
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any index or formula used to determine the amount of payments of
principal of and any premium or interest on the debt securities;
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whether the debt securities are to be issued in whole or in part
in the form of one or more global securities and, if so, the
identity of the depositary, if any, for the global securities;
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the manner, if any, in which the debt securities will be
exchangeable for the common stock or other securities of
Federated or any other person;
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the principal amount (or any portion of the principal amount) of
the debt securities which will be payable upon any declaration
of acceleration of the maturity of the debt securities pursuant
to an event of default; and
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the applicability to the debt securities of the provisions
described under Defeasance below.
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We may issue debt securities at a discount from their stated
principal amount. Federal income tax considerations and other
special considerations applicable to any debt security issued
with original issue discount (an original issue discount
security) may be described in an applicable prospectus
supplement.
If the purchase price of any series of the debt securities is
payable in a foreign currency or currency unit or if the
principal of or any premium or interest on any series of the
debt securities is payable in a foreign currency or currency
unit, the restrictions, elections, general tax considerations,
specific terms, and other information with respect to the debt
securities and the applicable foreign currency or currency unit
will be set forth in an applicable prospectus supplement.
Unless otherwise indicated in an applicable prospectus
supplement:
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the debt securities will be issued only in fully registered form
(without coupons) in denominations of $1,000 or integral
multiples thereof; and
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payment of principal and any premium or interest on the debt
securities will be payable, and the exchange and transfer of
debt securities will be registrable, at Federated Holdings
office or agency maintained for those purposes and at any other
office or agency maintained for those purposes. No service
charge will be made for any registration of transfer or exchange
of the debt securities, but we may require payment of a sum
sufficient to cover any tax or other governmental charge imposed
in connection therewith.
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Guarantees
Subject to the limitations described below and except as
otherwise disclosed in the applicable prospectus supplement,
Federated will fully, unconditionally and irrevocably guarantee
the full and punctual payment when due, whether at maturity, by
acceleration, by redemption, by repurchase, or otherwise, of all
payment obligations on the debt securities of a series, whether
for principal of, or any premium or interest on, the debt
securities or otherwise.
In the case of subordinated debt securities of any series,
Federateds guarantee will be subordinated in right of
payment to its senior debt on the same basis as the subordinated
debt securities of each series are subordinated to Federated
Holdings senior debt securities. No payment will be made
by Federated under its guarantee during any period in which
payments by Federated Holdings on any subordinated debt
securities are suspended by the subordination provisions
applicable to such series.
Each guarantee will be limited in amount to an amount not to
exceed the maximum amount that can be guaranteed by Federated
without rendering such guarantee voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
4
Each guarantee will be a continuing guarantee and will:
(1) remain in full force and effect until either
(a) payment in full of all the applicable debt securities
(or such debt securities are otherwise satisfied and discharged
in accordance with the provisions of the applicable indenture)
or (b) released in connection with a redemption, if any;
(2) be binding upon Federated; and
(3) inure to the benefit of and be enforceable by the
applicable trustee, the holders and their successors,
transferees and assigns.
Global
Securities
The debt securities of a series may be issued in whole or in
part in the form of one or more global securities that will be
deposited with, or on behalf of, a depositary or its nominee
identified in an applicable prospectus supplement. Unless and
until it is exchanged in whole or in part for debt securities in
registered form, a global security may not be registered for
transfer or exchange except:
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by the depositary to a nominee of the depositary;
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by a nominee of the depositary to the depositary or another
nominee of the depositary;
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by the depositary or any nominee of the depositary to a
successor depositary or a nominee of the successor
depositary; or
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in any other circumstances described in an applicable prospectus
supplement.
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The specific terms of the depositary arrangement with respect to
any debt securities to be represented by a global security will
be described in an applicable prospectus supplement. We expect
that the following provisions will apply to depositary
arrangements.
Unless otherwise specified in an applicable prospectus
supplement, any global security that represents debt securities
will be registered in the name of the depositary or its nominee.
Upon the deposit of a global security with or on behalf of the
depositary for the global security, the depositary will credit,
on its book-entry registration and transfer system, the
respective principal amounts of the debt securities represented
by the global security to the accounts of institutions that are
participants in such system. The accounts to be credited will be
designated by the underwriters or agents of the debt securities
or by Federated Holdings, if the debt securities are offered and
sold directly by Federated Holdings.
Ownership of beneficial interests in debt securities represented
by a global security will be limited to participants in the
book-entry registration and transfer system of the applicable
depositary or persons that may hold interests through those
participants. Ownership of those beneficial interests by
participants will be shown on, and the transfer of ownership
will be effected only through, records maintained by the
depositary or its nominee for such global security. Ownership of
such beneficial interests by persons that hold through such
participants will be shown on, and the transfer of such
ownership will be effected only through, records maintained by
the participants. The laws of some jurisdictions require that
specified purchasers of securities take physical delivery of
their securities in definitive form. These laws may impair your
ability to transfer beneficial interests in a global security.
So long as the depositary for a global security, or its nominee,
is the registered owner of the global security, the depositary
or the nominee, as the case may be, will be considered the sole
owner or holder of the debt securities represented by the global
security for all purposes under the indenture. Unless otherwise
specified in an applicable prospectus supplement, owners of
beneficial interests in the global security will not be entitled
to have any of the debt securities represented by the global
security registered in their names, will not receive or be
entitled to receive physical delivery of any such debt
securities in certificated form, and will not be considered the
owners or holders of the debt securities for any purpose under
the indenture. Accordingly, each person owning a beneficial
interest in debt securities represented by a global security
must rely on the procedures of the applicable depositary and, if
the person is not a participant in the book-entry registration
and transfer system of the applicable depositary, on the
procedures of the participant through which the person owns its
interest, to exercise any rights of an owner or holder of debt
securities under the indenture.
5
We understand that, under existing industry practices, if an
owner of a beneficial interest in debt securities represented by
a global security desires to give any notice or take any action
that an owner or holder of debt securities is entitled to give
or take under the indenture:
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the applicable depositary would authorize its participants to
give the notice or take the action; and
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the participants would authorize persons owning the beneficial
interests through the participants to give the notice or take
the action or would otherwise act upon the instructions of the
persons owning the beneficial interests.
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Principal of and any premium and interest on debt securities
represented by a global security will be payable in the manner
described in an applicable prospectus supplement. Payment of
principal of, and any premium or interest on, debt securities
represented by a global security will be made to the applicable
depositary or its nominee, as the case may be, as the registered
owner or the holder of the global security. None of us, the
trustee, any paying agent, or the registrar for debt securities
represented by a global security will have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests in those debt
securities or for maintaining, supervising, or reviewing any
records relating to those beneficial ownership interests.
Certain
Covenants of Federated Holdings
Maintenance of Office or Agency.
Federated
Holdings will be required to maintain an office or agency in
each place of payment for each series of debt securities for
notice and demand purposes and for the purposes of presenting or
surrendering debt securities for payment, registration of
transfer, or exchange.
Paying Agents, Etc.
If Federated Holdings acts
as its own paying agent with respect to any series of debt
securities, on or before each due date of the principal of or
any premium or interest on any of the debt securities of that
series, Federated Holdings will be required to segregate and
hold in trust for the benefit of the persons entitled to payment
a sum sufficient to pay the amount due and to notify the trustee
promptly of Federated Holdings action or failure to act. If
Federated Holdings has one or more paying agents for any series
of debt securities, prior to each due date of the principal of
or any premium or interest on any debt securities of that
series, Federated Holdings will be required to deposit with a
paying agent a sum sufficient to pay the amount due and, unless
the paying agent is the trustee, to promptly notify the trustee
of its action or failure to act. All moneys paid by Federated
Holdings to a paying agent for the payment of principal of or
any premium or interest on any debt securities that remain
unclaimed for two years after the principal or any premium or
interest has become due and payable may be repaid to Federated
Holdings, and thereafter the holder of those debt securities may
look only to Federated Holdings for payment thereof.
Existence.
Federated Holdings will be required
to, and will be required to cause its subsidiaries to, preserve
and keep in full force and effect its and their existence,
charter rights, statutory rights, and franchises, except to the
extent that the failure to do so would not have a Material
Adverse Effect.
Restrictive Covenants.
Any restrictive
covenants applicable to any series of debt securities will be
described in an applicable prospectus supplement.
Events of
Default
The following are Events of Default under the indenture with
respect to debt securities of any series:
(1) failure to pay principal of or premium, if any, on any
debt security of that series when due;
(2) failure to pay any interest on any debt security of
that series when due, which failure continues for
30 calendar days;
(3) failure to make any sinking fund payment in respect of
any debt security of that series when it becomes due and payable;
(4) failure to perform, or breach of, any other of
Federated Holdings covenants in the indenture (other than
a covenant included in the indenture solely for the benefit of a
series of debt securities other than that
6
series), which failure or breach continues for 60 calendar days
after written notice thereof has been given to Federated
Holdings as provided in the indenture;
(5) any nonpayment at maturity or other default (beyond any
applicable grace period) under any agreement or instrument
relating to any other indebtedness of Federated Holdings, the
unpaid principal amount of which is not less than
$100 million, which default results in the acceleration of
the maturity of the indebtedness prior to its stated maturity or
occurs at the final maturity thereof;
(6) any guarantee of the debt securities of that series
ceases to be in full force and effect (except as contemplated by
the terms of the indenture) or is declared in a judicial
proceeding to be null and void, or Federated denies or
disaffirms in writing its obligations under its guarantee;
(7) specified events of bankruptcy, insolvency, or
reorganization involving Federated Holdings or
Federated; and
(8) any other Event of Default provided with respect to
debt securities of that series.
Pursuant to the Trust Indenture Act of 1939, the trustee is
required, within 90 calendar days after the occurrence of a
default in respect of any series of debt securities, to give to
the holders of the debt securities of that series notice of all
uncured defaults known to it, except that:
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in the case of a default in the performance of any covenant of
the character contemplated in clause (4) above, no notice
will be given until at least 30 calendar days after the
occurrence of the default; and
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other than in the case of a default of the character
contemplated in clause (1), (2) or (3) above, the
trustee may withhold notice if and so long as it in good faith
determines that the withholding of notice is in the interests of
the holders of the debt securities of that series.
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If an Event of Default described in clause (7) above
occurs, the principal of, and any premium and accrued interest
on the debt securities of that series will become immediately
due and payable without any declaration or other act on the part
of the trustee or any holder of the debt securities of that
series. If any other Event of Default with respect to debt
securities of any series occurs and is continuing, either the
trustee or the holders of at least 25% in principal amount of
the outstanding debt securities of that series may declare the
principal amount of all debt securities of that series to be due
and payable immediately. However, at any time after a
declaration of acceleration with respect to debt securities of
any series has been made, but before a judgment or decree based
on such acceleration has been obtained, the holders of a
majority in principal amount of the outstanding debt securities
of that series may, under specified circumstances, rescind and
annul such acceleration. See Modification and
Waiver below.
Subject to the duty of the trustee to act with the required
standard of care during an Event of Default, the trustee will
have no obligation to exercise any of its rights or powers under
the indenture at the request or direction of the holders of debt
securities, unless holders of debt securities shall have offered
to the trustee reasonable security or indemnity. Subject to the
provisions of the indenture, including those requiring security
or indemnification of the trustee, the holders of a majority in
principal amount of the debt securities of any series will have
the right to direct the time, method, and place of conducting
any proceeding for any remedy available to the trustee, or
exercising any trust or power conferred on the trustee, with
respect to the debt securities of that series.
No holder of a debt security of any series will have any right
to institute any proceeding with respect to the indenture or for
any remedy thereunder unless:
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the holder has previously given to the trustee written notice of
a continuing Event of Default with respect to the debt
securities of that series;
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the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have requested in
writing that the trustee institute a proceeding as trustee in
respect of the Event of Default;
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the holder or holders have offered reasonable indemnity to the
trustee to institute the proceeding as trustee;
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the trustee has not received from the holders of a majority in
principal amount of the outstanding debt securities of that
series a direction inconsistent with the written
request; and
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the trustee has failed to institute the proceeding within 60
calendar days after receipt of the written request.
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However, the limitations described above do not apply to a suit
instituted by a holder of a debt security for enforcement of
payment of the principal of and any premium or interest on such
debt security on or after the applicable due dates for the
payment of such obligations.
Federated Holdings is required to furnish to the trustee
annually a statement as to the performance of its obligations
under the indenture and as to any default in its performance.
Any additional Events of Default with respect to any series of
debt securities, and any variations from the foregoing Events of
Default applicable to any series of debt securities, will be
described in an applicable prospectus supplement.
Modification
and Waiver
In general, modifications and amendments of the indenture may be
made by Federated Holdings, Federated and the trustee with the
consent of the holders of not less than a majority in principal
amount of the outstanding debt securities of each series
affected thereby. However, no modification or amendment of the
indenture may, without the consent of the holder of each
outstanding debt security affected thereby:
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change the stated maturity of, or any installment of principal
of, or interest on, any debt security;
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reduce the principal amount of, the rate of interest on, or the
premium, if any, payable upon the redemption of, any debt
security;
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reduce the amount of principal of an original issue discount
security payable upon acceleration of the maturity thereof;
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change the place or currency of payment of principal of, and any
premium or interest on, any debt security;
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impair the right to institute suit for the enforcement of any
payment on or with respect to any debt security on or after the
stated maturity or prepayment date thereof; or
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reduce the percentage in principal amount of outstanding debt
securities of any series required for modification or amendment
of the indenture or for waiver of compliance with certain
provisions of the indenture or for waiver of certain defaults.
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The holders of at least a majority in principal amount of the
outstanding debt securities of any series may, on behalf of the
holders of all debt securities of that series, waive Federated
Holdings compliance with specified covenants of the
indenture. The holders of at least a majority in principal
amount of the outstanding debt securities of any series may, on
behalf of the holders of all debt securities of that series,
waive any past default under the indenture with respect to that
series, except:
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a default in the payment of the principal of, any premium or
interest on, any debt security of that series; or
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a default of a provision of the indenture that cannot be
modified or amended without the consent of the holder of each
outstanding debt security of that series.
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Defeasance
Unless otherwise specified in a prospectus supplement applicable
to a particular series of debt securities and except as
described below, upon compliance with the applicable
requirements described below, Federated Holdings:
(1) will be deemed to have been discharged from its
obligations with respect to the outstanding debt securities of
that series; or
8
(2) will be released from its obligations to comply with
certain covenants described under Certain
Covenants of Federated Holdings above and from certain
prohibitions against consolidations, mergers, and the transfer
of its assets described under Limitations on
Merger and Other Transactions below with respect to the
outstanding debt securities of that series, and the occurrence
of an event described in any of clauses (3), (4),
(5) and (8) under Events of
Default above will no longer be an Event of Default with
respect to the debt securities of that series except to the
limited extent described below.
Following any defeasance described in clause (1) or
(2) above, Federated Holdings will continue to have
specified obligations under the indenture, including obligations
to register the transfer or exchange of debt securities of the
applicable series; replace destroyed, stolen, lost, or mutilated
debt securities of the applicable series; maintain an office or
agency in respect of the debt securities of the applicable
series; and hold funds for payment to holders of debt securities
of the applicable series in trust. In the case of any defeasance
described in clause (2) above, any failure by Federated
Holdings to comply with its continuing obligations may
constitute an Event of Default with respect to the debt
securities of the applicable series as described in
clause (4) under Events of Defaults
above.
In order to effect any defeasance described in clause (1)
or (2) above, Federated Holdings must irrevocably deposit
with the trustee, in trust, money or specified government
obligations (or depositary receipts therefor) that through the
scheduled payment of principal and interest in accordance with
their terms will provide, without reinvestment, money in an
amount sufficient to pay all of the principal and any premium
and interest on the debt securities of such series on the dates
such payments are due in accordance with the terms of such debt
securities. In addition, among other things:
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no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default under
the indenture shall have occurred and be continuing on the date
of such deposit;
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no Event of Default or any event described in clause (7)
under Events of Default above shall have
occurred and be continuing at any time on or prior to the
124
th
calendar
day following the date of deposit;
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in the event of any defeasance described in clause (1)
above, Federated Holdings shall have delivered to the trustee an
opinion of outside counsel, stating that (a) it has
received from, or there has been published by, the United States
Internal Revenue Service a ruling or (b) there has been a
change in applicable federal income tax law, in either case to
the effect that, among other things, the holders of the
outstanding debt securities of such series will not recognize
gain or loss for United States federal income tax purposes as a
result of such deposit or defeasance and will be subject to
United States federal income tax in the same manner as if such
deposit or defeasance had not occurred;
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in the event of any defeasance described in clause (2)
above, Federated Holdings shall have delivered to the trustee an
opinion of outside counsel to the effect that, among other
things, the holders of the outstanding debt securities of such
series will not recognize gain or loss for United States federal
income tax purposes as a result of such deposit or defeasance
and will be subject to United States federal income tax in the
same manner as if such deposit or defeasance had not occurred;
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Federated Holdings shall have delivered to the trustee an
officers certificate to the effect that (a) the debt
securities of such series, if then listed on any securities
exchange, will not be delisted solely as a result of such
deposit and (b) any defeasance described in clause (1)
or (2) above shall not result in a breach or violation of,
or constitute a default under, any agreement to which Federated
Holdings is a party or violate any law to which Federated
Holdings is subject; and
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Federated Holdings shall have delivered to the trustee a
certificate from a nationally recognized firm of independent
accountants or other person acceptable to the trustee expressing
their opinion that the payments of principal and interest when
due on the deposited government obligations plus any deposited
money will provide the cash at such times and in such amounts as
will be sufficient to pay the principal of and any premium and
interest when due on the debt securities of such series on the
respective maturities or on any earlier date or dates on which
the debt securities of such series shall be subject to
redemption at the option of the holder thereof.
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9
If Federated Holdings fails to comply with its remaining
obligations under the indenture with respect to the debt
securities of the applicable series following a defeasance
described in clause (2) above and the debt securities of
that series are declared due and payable because of the
occurrence of any undefeased Event of Default, the amount of
money and government obligations on deposit with the trustee may
be insufficient to pay amounts due on the debt securities of
that series at the time of the acceleration resulting from such
Event of Default. However, Federated Holdings will remain liable
in respect of such payments.
Satisfaction
and Discharge
Federated Holdings, at its option, may satisfy and discharge the
indenture (except for specified obligations of Federated
Holdings and the trustee, including, among others, the
obligations to apply money held in trust) when:
(1) all of the debt securities previously authenticated and
delivered under the indenture (subject to specified exceptions
relating to debt securities that have otherwise been satisfied
or provided for) have been delivered to the trustee for
cancellation; or
(2) all of the debt securities not previously delivered to
the trustee for cancellation have become due and payable, will
become due and payable at their stated maturity within one year,
or 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, and Federated Holdings has
deposited or caused to be deposited with the trustee as trust
funds for such purpose an amount sufficient to pay and discharge
the entire indebtedness on such debt securities, for principal
and any premium and interest to the date of such deposit (in the
case of debt securities which have become due and payable) or to
the stated maturity or redemption date, as the case may be;
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Federated Holdings has paid or caused to be paid all other sums
payable by it under the indenture; and
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Federated Holdings has delivered to the trustee an
officers certificate and an opinion of counsel, each to
the effect that all conditions precedent relating to the
satisfaction and discharge of the indenture have been satisfied.
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Limitations
on Merger and Other Transactions
Prior to the satisfaction and discharge of the indenture,
Federated Holdings may not consolidate with or merge with or
into any other person, or transfer all or substantially all of
its properties and assets to another person unless:
(1) Federated Holdings is the continuing or surviving
person in the consolidation or merger; or
(2) the person (if other than Federated Holdings) formed by
the consolidation or into which Federated Holdings is merged or
to which all or substantially all of the properties and assets
of Federated Holdings are transferred is a corporation,
partnership, limited liability company, business trust, trust or
other legal entity organized and validly existing under the laws
of the United States, any State thereof, or the District of
Columbia, and expressly assumes, by a supplemental indenture,
all of Federated Holdings obligations under the debt
securities and the indenture;
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immediately after the transaction and the incurrence or
anticipated incurrence of any indebtedness to be incurred in
connection therewith, no Default exists; and
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an officers certificate is delivered to the trustee to the
effect that both of the conditions set forth above have been
satisfied and an opinion of outside counsel has been delivered
to the trustee to the effect that the first condition set forth
above has been satisfied.
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The continuing, surviving, or successor person will succeed to
and be substituted for Federated Holdings with the same effect
as if it had been named in the indenture as a party thereto, and
thereafter the predecessor person will be relieved of all
obligations and covenants under the indenture and the debt
securities.
10
Governing
Law
The indenture is, and the debt securities will be, governed by,
and construed in accordance with, the laws of the State of New
York.
Regarding
the Trustee
The indenture and the Trust Indenture Act contain specified
limitations on the right of the trustee, should it become a
creditor of Federated Holdings within three months of, or
subsequent to, a default by Federated Holdings to make payment
in full of principal of or interest on any series of debt
securities issued pursuant to the indenture when and as the same
becomes due and payable, to obtain payment of claims, or to
realize for its own account on property received in respect of
any such claim as security or otherwise, unless and until such
default is cured. However, the trustees rights as a
creditor of Federated Holdings will not be limited if the
creditor relationship arises from, among other things:
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the ownership or acquisition of securities issued under any
indenture or having a maturity of one year or more at the time
of acquisition by the trustee;
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specified advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by the indenture;
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disbursements made in the ordinary course of business in its
capacity as indenture trustee, transfer agent, registrar,
custodian, or paying agent or in any other similar capacity;
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indebtedness created as a result of goods or securities sold in
a cash transaction or services rendered or premises
rented; or
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the acquisition, ownership, acceptance, or negotiation of
specified drafts, bills of exchange, acceptances, or other
obligations.
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The indenture does not prohibit the trustee from serving as
trustee under any other indenture to which Federated Holdings
may be a party from time to time or from engaging in other
transactions with Federated Holdings. If the trustee acquires
any conflicting interest within the meaning of the
Trust Indenture Act and there is an Event of Default with
respect to any series of debt securities, the trustee must
eliminate the conflict or resign.
DESCRIPTION
OF FEDERATED CAPITAL STOCK
Authorized
Capital Stock
Federated is authorized to issue 1,125 million shares of
capital stock, consisting of 1,000 million shares of common
stock, par value $0.01 per share, and 125 million
shares of preferred stock, par value $0.01 per share.
Common
Stock
Holders of Federated common stock are entitled to one vote for
each share held of record on all matters submitted to a vote of
stockholders. Upon satisfaction of Federateds obligations
to preferred stockholders, holders of Federated common stock may
receive dividends when declared by the Federated board of
directors. If Federated liquidates, dissolves or
winds-up
its
business, holders of Federated common stock will share equally
in the assets remaining after Federated pays all of its
creditors and satisfies all of its obligations to preferred
stockholders. Holders of Federated common stock have no
conversion, preemptive, subscription or redemption rights.
Federated common stock is traded on the New York Stock Exchange
under the symbol FD. The registrar and transfer
agent for the common stock is The Bank of New York.
Preferred
Stock
The Federated board of directors can, without approval of
stockholders, issue one or more series of preferred stock. The
board can determine the number of shares of each series and the
rights, preferences and limitations of each series, including
dividend rights, voting rights, conversion rights, redemption
rights and any liquidation
11
preferences and the terms and conditions of the issue. In some
cases, the issuance of preferred stock could delay, defer or
prevent a change in control of Federated and make it harder to
remove present management, without further action by Federated
stockholders. Under some circumstances, preferred stock could
also decrease the amount of earnings and assets available for
distribution to holders of Federated common stock if Federated
liquidates or dissolves and could also restrict or limit
dividend payments to holders of Federated common stock.
Federated has not issued any shares of preferred stock to date,
and Federated does not plan to issue any shares of preferred
stock.
Purposes
and Effects of Certain Provisions of Federateds
Certificate of Incorporation and By-laws
General
Federateds certificate of incorporation and by-laws
contain provisions that could make more difficult the
acquisition of control of Federated by means of a tender offer,
open market purchases, a proxy contest or otherwise. A
description of these provisions is set forth below.
Removal
of Directors
Federateds certificate of incorporation provides that,
except as may be otherwise provided by the terms of any series
of preferred stock, a director may only be removed at any annual
or special meeting of Federateds stockholders, the notice
of which states that the removal of a director or directors is
among the purposes of the meeting, by the affirmative vote of
the holders of at least 80% of the then-outstanding shares of
its voting stock entitled to vote in the election of directors,
voting together as a single class. Federateds certificate
of incorporation also requires the approval of the holders of at
least 80% of the then-outstanding shares of its voting stock
entitled to vote in the election of directors, voting together
as a single class, to amend, alter or repeal any provision of
Federateds certificate of incorporation governing the
removal of directors.
Limitation
of Director Liability
Federateds certificate of incorporation provides that, to
the full extent permitted by the Delaware General Corporation
Law or any other applicable law currently or hereafter in
effect, no director will be personally liable to Federated or
its stockholders for or with respect to any acts or omissions in
the performance of his or her duties as a director of Federated.
This provision in Federateds certificate of incorporation
may have the effect of reducing the likelihood of derivative
litigation against Federateds directors and may discourage
or deter stockholders or management from bringing a lawsuit
against Federateds directors for breach of their duty of
care, even though such an action, if successful, might otherwise
have benefited Federated and its stockholders. These provisions
do not limit or affect a stockholders ability to seek and
obtain relief under federal securities laws.
No
Stockholder Action by Written Consent
Federateds certificate of incorporation provides that any
action required or permitted to be taken by the Federated
stockholders must be effected at a duly called annual or special
meeting of stockholders and may not be effected by a written
consent of Federated stockholders. This prevents Federated
stockholders from initiating or effecting any action by written
consent, thereby limiting the ability of Federated stockholders
to take actions opposed by Federateds board of directors.
Federateds certificate of incorporation requires the
approval of the holders of at least 80% of the then-outstanding
shares of its voting stock entitled to vote in the election of
directors, voting together as a single class, to amend, alter or
repeal any provision of Federateds certificate of
incorporation prohibiting stockholder actions by written
consent. However, if a majority, but less than 80%, of
Federateds then-outstanding shares of voting stock
entitled to vote in the election of directors, voting together
as a single class, votes to amend, alter or repeal any
provisions of Federateds certificate of incorporation
prohibiting stockholder actions by written consent, such
amendment, alteration or repeal will become effective
12 months after such approval.
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Special
Meetings of Stockholders
Federateds certificate of incorporation and by-laws
provide that special meetings of stockholders may be called only
by the chairman of the Federated board of directors, the
secretary of Federated upon receipt of a written request from a
majority of directors (assuming no vacancies) or the Federated
board of directors upon receipt of a written request from not
less than 15% of Federateds voting stock entitled to vote
in the election of directors, voting together as a single class.
Section 203
of the Delaware General Corporation Law
Federateds certificate of incorporation contains a
provision substantially the same as Section 203 of the
Delaware General Corporation Law. Thus, Federated is subject to
Section 203, which prohibits publicly held Delaware
corporations from engaging in a business combination
with an interested stockholder for a period of three
years following the time of the transaction in which the person
or entity became an interested stockholder, unless:
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prior to that time, either the business combination or the
transaction which resulted in the stockholder becoming an
interested stockholder is approved by the board of directors of
the corporation;
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upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the outstanding voting stock
of the corporation, excluding for this purpose shares owned by
persons who are directors and also officers of the corporation
and by specified employee benefit plans; or
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at or after such time the business combination is approved by
the board of directors of the corporation and by the affirmative
vote of at least
66
2
/
3
%
of the outstanding voting stock which is not owned by the
interested stockholder.
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For the purposes of Section 203, a business
combination is broadly defined to include mergers, asset
sales and other transactions resulting in a financial benefit to
the interested stockholder. An interested
stockholder is a person who, together with affiliates and
associates, owns or within the immediately preceding three years
did own 15% or more of the corporations voting stock.
DESCRIPTION
OF DEPOSITARY SHARES
Federated may offer depositary shares (either separately or
together with other securities) representing fractional shares
of Federateds preferred stock of any series. In connection
with the issuance of any depositary shares, Federated will enter
into a deposit agreement with a bank or trust company, as
depositary, which will be named in the applicable prospectus
supplement. Depositary shares will be evidenced by depositary
receipts issued pursuant to the related deposit agreement.
Immediately following Federateds issuance of the security
related to the depositary shares, Federated will deposit the
shares of its preferred stock with the relevant depositary and
will cause the depositary to issue, on Federateds behalf,
the related depositary receipts. Subject to the terms of the
deposit agreement, each owner of a depositary receipt will be
entitled, in proportion to the fraction of a share of preferred
stock represented by the related depositary share, to all the
rights, preferences and privileges of, and will be subject to
all of the limitations and restrictions on, the preferred stock
represented by the depositary receipt (including, if applicable,
dividend, voting, conversion, exchange, redemption, sinking
fund, repayment at maturity, subscription and liquidation
rights).
DESCRIPTION
OF WARRANTS
We may issue warrants for the purchase of debt securities of
Federated Holdings, common stock, preferred stock or depositary
shares of Federated or any combination thereof. Warrants may be
issued independently or together with any other securities
offered by a prospectus supplement. Warrants may be attached to
or separate from such securities. Warrants may be issued under
warrant agreements to be entered into among Federated
and/or
Federated Holdings and a warrant agent specified in the
applicable prospectus supplement. The warrant agent will act
solely as an agent of Federated
and/or
Federated Holdings in connection with the warrants of a
particular series
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and will not assume any obligation or relationship of agency or
trust for or with any holders or beneficial owners of warrants.
The applicable prospectus supplement will describe the terms of
the warrants in respect of which this prospectus is being
delivered, including, where applicable, the following:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued;
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the designation, number and terms of the debt securities of
Federated Holdings, the common stock, preferred stock or
depositary shares of Federated or combination thereof,
purchasable upon exercise of such warrants;
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the designation and terms of the other securities, if any, with
which such warrants are issued and the number of such warrants
issued with each such security;
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the date, if any, on and after which such warrants and the
related underlying securities will be separately transferable;
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the price at which each underlying security purchasable upon
exercise of such warrants may be purchased;
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the date on which the right to exercise such warrants shall
commence and the date on which such right shall expire;
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the minimum amount of such warrants which may be exercised at
any one time;
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information with respect to book-entry procedures, if any;
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a discussion of any applicable federal income tax
considerations; and
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any other terms of such warrants, including terms, procedures
and limitations relating to the transferability, exchange and
exercise of such warrants.
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DESCRIPTION
OF PURCHASE CONTRACTS
We may issue purchase contracts, including contracts obligating
holders to purchase from us, and for us to sell to holders, a
specific or varying number of debt securities of Federated
Holdings, shares of common stock, preferred stock or depositary
shares of Federated, warrants, or securities of an entity
unaffiliated with us, or any combination of the above, at a
future date or dates. Alternatively, the purchase contracts may
obligate us to purchase from holders, and obligate holders to
sell to us, a specific or varying number of debt securities of
Federated Holdings, shares of common stock, preferred stock or
depositary shares of Federated, warrants, or other property, or
any combination of the above. The price of the securities or
other property subject to the purchase contracts may be fixed at
the time the purchase contracts are issued or may be determined
by reference to a specific formula described in the purchase
contracts. We may issue purchase contracts separately or as a
part of units each consisting of a purchase contract and one or
more of the other securities of Federated Holdings
and/or
Federated described in this prospectus or securities of third
parties, including U.S. Treasury securities, securing the
holders obligations under the purchase contract. The
purchase contracts may require us to make periodic payments to
holders or vice versa and the payments may be unsecured or
pre-funded on some basis. The purchase contracts may require
holders to secure the holders obligations in a manner
specified in the applicable prospectus supplement.
The applicable prospectus supplement will describe the terms of
any purchase contracts in respect of which this prospectus is
being delivered, including, to the extent applicable, the
following:
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whether the purchase contracts obligate the holder or us to
purchase or sell, or both purchase and sell, the securities
subject to purchase under the purchase contract, and the nature
and amount of each of those securities, or the method of
determining those amounts;
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whether the purchase contracts are to be prepaid or not;
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14
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whether the purchase contracts are to be settled by delivery, or
by reference or linkage to the value, performance or level of
the securities subject to purchase under the purchase contract;
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any acceleration, cancellation, termination or other provisions
relating to the settlement of the purchase contracts; and
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whether the purchase contracts will be issued in fully
registered or global form.
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DESCRIPTION
OF UNITS
We may issue units comprising one or more securities of
Federated Holdings
and/or
Federated described in this prospectus in any combination. Units
may also include debt obligations of third parties, such as
U.S. Treasury securities. Each unit will be issued so that
the holder of the unit also is the holder of each security
included in the unit. Thus, the holder of a unit will have the
rights and obligations of a holder of each included security.
The unit agreement under which a unit is issued may provide that
the securities included in the unit may not be held or
transferred separately at any time or at any time before a
specified date or occurrence.
The applicable prospectus supplement will describe the terms of
any units in respect of which this prospectus is being
delivered, including, to the extent applicable, the following:
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the designation and terms of the units and the securities
included in the units, including whether and under what
circumstances those securities may be held or transferred
separately;
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any provision for the issuance, payment, settlement, transfer or
exchange of the units or of the securities included in the
units; and
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whether the units will be issued in fully registered or global
form.
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RATIO OF
EARNINGS TO FIXED CHARGES
The following table shows Federateds historical ratio of
earnings to fixed charges for the twenty-six weeks ended
July 29, 2006 and each of the previous five fiscal years.
Federateds ratio of earnings to fixed charges for each of
the periods set forth below has been computed on a consolidated
basis and should be read in conjunction with the consolidated
financial statements, including the notes to those financial
statements, and other information set forth in the reports filed
by Federated with the SEC.
For purposes of determining the ratio of earnings to fixed
charges, earnings consist of income from continuing
operations before income taxes plus fixed charges (excluding
interest capitalized). Fixed charges represent
interest incurred, amortization of debt expenses, and that
portion of rental expenses on operating leases deemed to be the
equivalent of interest.
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26 Weeks Ended
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Fiscal Year Ended
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July 29,
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January 28,
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January 29,
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January 31,
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February 1,
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February 2,
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2006
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2006
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2005
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2004
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2003
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2002
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1.6x
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4.7
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x
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3.9
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x
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3.7
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x
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3.4
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x
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2.6x
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USE OF
PROCEEDS
We intend to use the net proceeds from the sales of the
securities described in this prospectus as set forth in the
applicable prospectus supplement.
CERTAIN
LEGAL MATTERS
In connection with particular offerings of the securities in the
future, and if stated in the applicable prospectus supplements,
the validity of those securities may be passed upon for us by
Dennis J. Broderick, Federateds Senior Vice President,
General Counsel and Secretary or by Jones Day, as our counsel,
and for any underwriters or agents by counsel named in the
applicable prospectus supplement.
15
EXPERTS
The consolidated financial statements and managements
report on the effectiveness of internal control over financial
reporting incorporated into this prospectus by reference from
Federateds Annual Report on
Form 10-K
for the year ended January 28, 2006, as amended, have been
audited by KPMG LLP, an independent registered public accounting
firm, as stated in their reports, which are incorporated by
reference herein, and have been so incorporated in reliance upon
the reports of such firm given upon their authority as experts
in accounting and auditing.
The consolidated financial statements and managements
report on the effectiveness of internal control over financial
reporting incorporated into this prospectus by reference from
the Annual Report on
Form 10-K
for the year ended January 29, 2005, as amended, of The May
Department Stores Company have been audited by
Deloitte & Touche LLP, an independent registered public
accounting firm, as stated in their reports, which are
incorporated by reference herein, and have been so incorporated
in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
16
FEDERATED
DEPARTMENT STORES, INC.
Common
Stock
Preferred Stock
Depositary Shares
Warrants
Purchase Contracts
Units
Guarantees of Debt Securities
FEDERATED
RETAIL HOLDINGS, INC.
Debt
Securities
Warrants
Purchase Contracts
Units
$2,000,000,000
PROSPECTUS
November 2,
2006
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution.
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The following table sets forth the estimated fees and expenses
in connection with the shelf registration of an assumed amount
of $2,000,000,000 of securities registered under this
registration statement, other than any underwriting discounts
and commissions. The actual amounts of such fees and expenses
will be determined from time to time.
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SEC registration fee
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$
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214,000
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Legal fees and expenses
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250,000
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Accounting fees and expenses
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130,000
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Printing and engraving expenses
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250,000
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Rating Agency fees
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420,000
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Trustees fees and expenses
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15,000
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Miscellaneous expenses(1)
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100,000
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Total
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$
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1,379,000
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(1)
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Includes estimate of blue sky fees and expenses and NASD filing
fees.
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Item 15.
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Indemnification
of Directors and Officers.
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Sections 721 through 726 of Article 7 of the New York
Business Corporation Law, which is applicable to Federated
Holdings, provide, in general, that a corporation may indemnify
a director or officer made a party to an action (i) by a
corporation or in its right in order to procure a judgment in
its favor unless he shall have breached his duties, or
(ii) other than an action by or in the right of the
corporation in order to procure a judgment in its favor, against
judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys fees actually and
necessarily incurred as a result of such action or proceeding,
if such director or officer acted in good faith and in a manner
he reasonably believed to be in or, in certain cases not opposed
to, such corporations interest and additionally, in
criminal actions, had no reasonable cause to believe his conduct
was unlawful. The statutory provisions for indemnification and
advancement of expenses are not exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled independently of the applicable statutory
provision.
Section 145 of the Delaware General Corporation Law, which
is applicable to Federated, provides, in general, that each
director and officer of a corporation may be indemnified against
expenses (including attorneys fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in
connection with any threatened, pending or completed legal
proceedings in which he or she is involved by reason of the fact
that he or she is or was a director or officer, if he or she
acted in good faith and in a manner that he or she reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or
proceeding, if he or she had no reasonable cause to believe that
his or her conduct was unlawful. If the legal proceeding,
however, is by or in the right of the corporation, the director
or officer may not be indemnified in respect of any claim, issue
or matter as to which he or she has been adjudged to be liable
to the corporation unless a court determines otherwise.
Federated Holdings by-laws provide for the indemnification
of directors and officers of Federated Holdings to the fullest
extent permitted by applicable law. Federateds certificate
of incorporation and by-laws provide for the indemnification of
Federateds directors and officers to the fullest extent
permitted by applicable law.
Federated also maintains insurance for officers and directors
(including the officers and directors of Federated Holdings)
against certain liabilities that such persons may incur in their
capacities as such.
Pursuant to separate indemnification agreements with Federated,
the directors and certain officers of Federated (including the
directors and certain officers of Federated Holdings) are
indemnified against certain liabilities that such persons may
incur in their capacities as such, to the fullest extent
permitted by applicable law.
II-1
The following documents are filed as exhibits to this
registration statement:
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Exhibit No.
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Description
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4
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.1
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Certificate of Incorporation of
Federated Department Stores, Inc. (Federated)
(incorporated by reference to Exhibit 3.1 to
Federateds Annual Report on
Form 10-K
(File
No. 001-135361)
for the fiscal year ended January 28, 1995)
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4
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.2
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Amended and Restated
Article Seventh of the Certificate of Incorporation of
Federated (incorporated by reference to Annex F to
Federateds Proxy Statement dated May 31, 2005)
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4
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.3
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Amended and Restated
Section 1 of Article Fourth of the Certificate of
Incorporation of Federated (incorporated by reference to
paragraph 4 under the caption Item 3
Proposal to Amend Federateds Certificate of
Incorporation in Federateds Proxy Statement dated
April 13, 2006)
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4
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.4
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By-Laws of Federated (incorporated
by reference to Exhibit 4.3 to Federateds
Registration Statement on
Form S-8
filed on April 1, 2003)
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4
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.5
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Amended and Restated
Sections 28 and 29 of the By-Laws of Federated
(incorporated by reference to Exhibit 99.1 to
Federateds Current Report on
Form 8-K
dated as of July 18, 2005)
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4
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.6
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Indenture, dated as of
November 2, 2006 (the Indenture), by and among
Federated Retail Holdings, Inc. (Federated
Holdings), Federated and U.S. Bank National
Association
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*4
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.7
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Form of debt securities
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*4
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.8
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Certificate of designations for
preferred stock of Federated
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*4
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.9
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Form of depositary receipt
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*4
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.10
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Form of depositary agreement
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*4
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.11
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Form of warrant
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*4
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.12
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Form of warrant agreement
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*4
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.13
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Form of purchase contract
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*4
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.14
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Form of unit certificate
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*4
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.15
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Form of unit agreement
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5
|
.1
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Form of Opinion of Jones Day
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12
|
.1
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Statement Regarding Computation of
Ratio of Earning to Fixed Charges
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23
|
.1
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Form of consent of Jones Day
(included in Exhibit 5.1)
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23
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.2
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Consent of KPMG LLP
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23
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.3
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Consent of Deloitte &
Touche LLP
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24
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.1
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Powers of Attorney for certain
directors and officers of Federated
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24
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.2
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Powers of Attorney for certain
directors and officers of Federated Holdings
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25
|
.1
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Form T-1
Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, by U.S. Bank National Association, the trustee
under the Indenture
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*
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To be filed by an amendment or as an exhibit to a report filed
under the Securities Exchange Act of 1934, as amended, and
incorporated by reference herein.
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The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding
II-2
the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however
, that paragraphs (1)(i), (1)(ii)
and (1)(iii) above do not apply if the information required to
be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission
by the registrants pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrants pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided, however
,
that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the
registrants under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, in a primary
offering of securities of the undersigned registrants pursuant
to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any
of the following communications, the undersigned registrants
will be a seller to the purchaser and will be considered to
offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrants relating to the offering required to be
filed pursuant to Rule 424;
II-3
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrants or used
or referred to by the undersigned registrants;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrants or their securities provided by or
on behalf of the undersigned registrants; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrants to the purchaser.
(6) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrants
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(7) To file an application for the purpose of determining
the eligibility of the trustee to act under
subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrants has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it
is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Cincinnati, State of Ohio, on November 2, 2006.
FEDERATED DEPARTMENT STORES, INC.
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By:
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/s/ Dennis
J. Broderick
|
Dennis J. Broderick
Senior Vice President, General Counsel and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons in the capacities indicated on November 2, 2006.
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Signatures
|
|
Title
|
|
*
Terry
J. Lundgren
|
|
Chairman of the Board, President
and Chief Executive Officer and Director (Principal Executive
Officer)
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*
Karen
M. Hoguet
|
|
Executive Vice President and Chief
Financial Officer
(Principal Financial Officer)
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*
Joel
A. Belsky
|
|
Vice President and Controller
(Principal Accounting Officer)
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*
Meyer
Feldberg
|
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Director
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*
Sara
Levinson
|
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Director
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*
Joseph
Neubauer
|
|
Director
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*
Joseph
A. Pichler
|
|
Director
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*
Joyce
M. Roché
|
|
Director
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*
William
P. Stiritz
|
|
Director
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*
Karl
M. von der Heyden
|
|
Director
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*
Craig
E. Weatherup
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Director
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*
Marna
C. Whittington
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Director
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*
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The undersigned, by signing his
name hereto, signs and executes this registration statement
pursuant to the Powers of Attorney executed by the above-named
officers and directors and filed with the Securities and
Exchange Commission.
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|
|
By:
|
/s/ Dennis
J. Broderick
|
Dennis J. Broderick
Attorney-in-Fact
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Cincinnati, State of Ohio, on November 2, 2006.
FEDERATED RETAIL HOLDINGS, INC.
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|
|
|
By:
|
/s/ Dennis
J. Broderick
|
Dennis J. Broderick
President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons in the capacities indicated on November 2, 2006.
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|
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|
|
Signatures
|
|
Title
|
|
/s/ Dennis
J. Broderick
Dennis
J. Broderick
|
|
President and Director
(Principal Executive Officer)
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|
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|
*
Karen
M. Hoguet
|
|
Vice President and Chief Financial
Officer
(Principal Financial and Accounting Officer)
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|
*
Joel
A. Belsky
|
|
Director
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*
|
|
The undersigned, by signing his name hereto, signs and executes
this registration statement pursuant to the Powers of Attorney
executed by the above-named officers and directors and filed
with the Securities and Exchange Commission.
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|
|
By:
|
/s/ Dennis
J. Broderick
|
Dennis J. Broderick
Attorney-in-Fact
II-6
EXHIBIT INDEX
|
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|
|
Exhibit No.
|
|
Description
|
|
|
4
|
.1
|
|
Certificate of Incorporation of
Federated Department Stores, Inc. (Federated)
(incorporated by reference to Exhibit 3.1 to
Federateds Annual Report on
Form 10-K
(File
No. 001-135361)
for the fiscal year ended January 28, 1995)
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4
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.2
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Amended and Restated
Article Seventh of the Certificate of Incorporation of
Federated (incorporated by reference to Annex F to
Federateds Proxy Statement dated May 31, 2005)
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4
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.3
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Amended and Restated
Section 1 of Article Fourth of the Certificate of
Incorporation of Federated (incorporated by reference to
paragraph 4 under the caption Item 3
Proposal to Amend Federateds Certificate of
Incorporation in Federateds Proxy Statement dated
April 13, 2006)
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4
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.4
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By-Laws of Federated (incorporated
by reference to Exhibit 4.3 to Federateds
Registration Statement on
Form S-8
filed on April 1, 2003)
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4
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.5
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Amended and Restated
Sections 28 and 29 of the By-Laws of Federated
(incorporated by reference to Exhibit 99.1 to
Federateds Current Report on
Form 8-K
dated as of July 18, 2005)
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4
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.6
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Indenture, dated as of
November 2, 2006 (the Indenture), by and among
Federated Retail Holdings, Inc. (Federated
Holdings), Federated and U.S. Bank National
Association
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*4
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.7
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Form of debt securities
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*4
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.8
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Certificate of designations for
preferred stock of Federated
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*4
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.9
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Form of depositary receipt
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*4
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.10
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Form of depositary agreement
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*4
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.11
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Form of warrant
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*4
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.12
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Form of warrant agreement
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*4
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.13
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Form of purchase contract
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*4
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.14
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Form of unit certificate
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*4
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.15
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Form of unit agreement
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5
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.1
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Form of Opinion of Jones Day
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12
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.1
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Statement Regarding Computation of
Ratio of Earning to Fixed Charges
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23
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.1
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Form of consent of Jones Day
(included in Exhibit 5.1)
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23
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.2
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Consent of KPMG LLP
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23
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.3
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Consent of Deloitte &
Touche LLP
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24
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.1
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Powers of Attorney for certain
directors and officers of Federated
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24
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.2
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Powers of Attorney for certain
directors and officers of Federated Holdings
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25
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.1
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Form T-1
Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, by U.S. Bank National Association, the trustee
under the Indenture
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*
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To be filed by an amendment or as an exhibit to a report filed
under the Securities Exchange Act of 1934, as amended, and
incorporated by reference herein.
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Exhibit 4.6
Federated Retail Holdings, Inc., as Issuer
Federated Department Stores, Inc., as Guarantor
and
U.S. Bank National Association, as Trustee
Indenture
Dated
as of November 2, 2006
DEBT SECURITIES
Federated Retail Holdings, Inc.
Debt Securities
Cross Reference Sheet*
This Cross Reference Sheet shows the location in the
Indenture of the provisions inserted pursuant to Sections 310 318(a),
inclusive, of the Trust Indenture Act of 1939, as amended.
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Trust Indenture Act
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Sections of Indenture
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§ 310
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(a)(1)
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9.08
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(a)(2)
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9.08
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(a)(3)
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Inapplicable
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(a)(4)
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Inapplicable
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(a)(5)
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9.08
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(b)
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9.07 and 9.09
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(c)
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Inapplicable
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§ 311
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(a)
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9.12
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(b)
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9.12
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(c)
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Inapplicable
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§ 312
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(a)
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7.01 and 7.02
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(b)
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7.02
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(c)
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7.02
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§ 313
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(a)
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7.03
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(b)
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7.03
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(c)
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7.03
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(d)
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7.03
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§ 314
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(a)
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7.04
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(a)(4)
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1.01 and 6.05
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(b)
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Inapplicable
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(c)(1)
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14.05
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(c)(2)
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14.05
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(c)(3)
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14.05
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(d)
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Inapplicable
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(e)
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14.05
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(f)
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Inapplicable
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§ 315
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(a)
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9.01
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(b)
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8.08
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(c)
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9.01
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(d)
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9.01
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(e)
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8.07
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§ 316
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(a)(1)(A)
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8.01 and 8.06
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(a)(1)(B)
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8.01
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(a)(2)
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Inapplicable
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(b)
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8.09
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(c)
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14.11
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§ 317
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(a)(1)
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8.02
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(a)(2)
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8.02
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(b)
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6.03
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§ 318
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(a)
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14.08
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*
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The Cross Reference Sheet is not part of the Indenture.
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TABLE OF CONTENTS
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Page
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RECITALS
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1
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[Form of Face of Security]
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1
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[Form of Reverse of Security]
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3
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[Form of Trustees Certificate Of Authentication for Securities]
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7
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[Form of Legend for Global Securities]
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7
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ARTICLE I. DEFINITIONS
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8
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Section 1.01. Certain Terms Defined
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8
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Act
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8
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Affiliate
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8
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Authenticating Agent
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8
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Board of Directors
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8
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Board Resolution
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8
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Business Day
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9
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Capital Lease
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9
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Capital Lease Obligation
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9
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Commission
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9
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Common Stock
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9
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Company
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9
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Company Request or Company Order
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9
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Corporate Trust Office
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10
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Covenant Defeasance
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10
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Default
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10
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Defaulted Interest
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10
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Defeasance
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10
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Defeasible Series
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10
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Depositary
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10
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Event of Default
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10
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|
Exchange Act
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10
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GAAP
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11
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Global Security
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11
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Guarantee
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11
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Guarantor
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11
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Holder
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11
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Indebtedness
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11
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Indenture
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12
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Interest
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12
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Interest Payment Date
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13
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Issuer
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13
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Material Adverse Effect
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13
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Maturity
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13
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Notice of Default
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13
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|
-i-
TABLE OF CONTENTS
(continued)
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Page
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Obligation
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13
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Officers Certificate
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13
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Opinion of Counsel
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13
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Original Issue Discount Security
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13
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Outstanding
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14
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Parent
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15
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Paying Agent
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15
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Person
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15
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Place of Payment
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15
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Predecessor Security
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15
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Redemption Date
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15
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Redemption Price
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15
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Regular Record Date
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16
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Responsible Officer
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16
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Securities
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16
|
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Security Register and Security Registrar
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16
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Special Record Date
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16
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Stated Maturity
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17
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Subsidiary
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17
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Trust Indenture Act
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17
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Trustee
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17
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U.S. Government Obligation
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17
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Vice President
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18
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ARTICLE II. THE SECURITIES
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18
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Section 2.01. Designation and Amount of Securities
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18
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Section 2.02. Form of Securities and Trustees Certificate of Authentication
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21
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Section 2.03. Date and Denominations
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21
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Section 2.04. Execution, Authentication and Delivery of Securities
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21
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|
Section 2.05. Registration of Transfer and Exchange
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22
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|
Section 2.06. Temporary Securities
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24
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Section 2.07. Mutilated, Destroyed, Lost, and Stolen Securities
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|
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24
|
|
Section 2.08. Cancellation of Surrendered Securities
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25
|
|
Section 2.09. Payment of Interest; Interest Rights Preserved
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25
|
|
Section 2.10. Persons Deemed Owners
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27
|
|
Section 2.11. Computation of Interest
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27
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|
Section 2.12. CUSIP Numbers
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27
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|
ARTICLE III. REDEMPTION OF SECURITIES
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27
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Section 3.01. Applicability of Article
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27
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|
Section 3.02. Election to Redeem; Notice to Trustee
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27
|
|
Section 3.03. Deposit of Redemption Price
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|
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29
|
|
-ii-
TABLE OF CONTENTS
(continued)
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Page
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|
Section 3.04. Securities Payable on Redemption Date
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29
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|
Section 3.05. Securities Redeemed in Part
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29
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ARTICLE IV. SINKING FUNDS
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29
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Section 4.01. Applicability of Article
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29
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|
Section 4.02. Satisfaction of Sinking Fund Payments With Securities
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|
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30
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|
Section 4.03. Redemption of Securities for Sinking Fund
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|
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30
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ARTICLE V. DEFEASANCE AND COVENANT DEFEASANCE
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|
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30
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|
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Section 5.01. Companys Option to Effect Defeasance or Covenant Defeasance
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|
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30
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|
Section 5.02. Defeasance and Discharge
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31
|
|
Section 5.03. Covenant Defeasance
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31
|
|
Section 5.04. Conditions to Defeasance or Covenant Defeasance
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|
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32
|
|
Section 5.05. Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions
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34
|
|
Section 5.06. Reinstatement
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34
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ARTICLE VI. PARTICULAR COVENANTS OF THE COMPANY
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35
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Section 6.01. Payment of Principal, Premium and Interest on Securities
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35
|
|
Section 6.02. Maintenance of Office or Agency
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35
|
|
Section 6.03. Money for Securities Payments to be Held in Trust
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35
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|
Section 6.04. Existence
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|
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36
|
|
Section 6.05. Statement by Officers as to Default
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36
|
|
Section 6.06. Waiver of Certain Covenants
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37
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|
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|
ARTICLE VII. SECURITIES HOLDERS LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
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|
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37
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|
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|
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders
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|
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37
|
|
Section 7.02. Preservation of Information; Communication to Holders
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37
|
|
Section 7.03. Reports by Trustee
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38
|
|
Section 7.04. Reports by Company
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38
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|
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ARTICLE VIII. DEFAULT
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38
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|
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|
Section 8.01. Event of Default
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38
|
|
Section 8.02. Covenant of Company to Pay to Trustee Whole Amount Due on Securities
on Default in Payment of Interest or Principal; Suits for Enforcement by Trustee
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41
|
|
Section 8.03. Application of Money Collected by Trustee
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|
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42
|
|
Section 8.04. Limitation on Suits by Holders of Securities
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|
43
|
|
Section 8.05. Rights and Remedies Cumulative; Delay or Omission in Exercise of Rights not a Waiver of Event of Default
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|
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43
|
|
-iii-
TABLE OF CONTENTS
(continued)
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Page
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|
Section 8.06. Rights of Holders of Majority in Principal Amount of Outstanding Securities to Direct Trustee
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|
|
44
|
|
Section 8.07. Requirement of an Undertaking to Pay Costs in Certain Suits Under the Indenture or Against the Trustee
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44
|
|
Section 8.08. Notice of Defaults
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44
|
|
Section 8.09. Unconditional Right of Holders to Receive Principal, Premium, and Interest
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|
|
44
|
|
Section 8.10. Restoration of Rights and Remedies
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|
|
44
|
|
Section 8.11. Trustee May File Proofs of Claims
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|
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45
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|
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|
|
ARTICLE IX. CONCERNING THE TRUSTEE
|
|
|
45
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|
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|
Section 9.01. Certain Duties and Responsibilities
|
|
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45
|
|
Section 9.02. Certain Rights of Trustee
|
|
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45
|
|
Section 9.03. Not Responsible for Recitals or Issuance of Securities
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|
|
46
|
|
Section 9.04. May Hold Securities
|
|
|
46
|
|
Section 9.05. Money Held in Trust
|
|
|
47
|
|
Section 9.06. Compensation and Reimbursement
|
|
|
47
|
|
Section 9.07. Disqualification; Conflicting Interests
|
|
|
47
|
|
Section 9.08. Corporate Trustee Required; Eligibility
|
|
|
48
|
|
Section 9.09. Resignation and Removal; Appointment of Successor
|
|
|
48
|
|
Section 9.10. Acceptance of Appointment by Successor
|
|
|
49
|
|
Section 9.11. Merger, Conversion, Consolidation, or Succession to Business
|
|
|
50
|
|
Section 9.12. Preferential Collection of Claims Against Company
|
|
|
51
|
|
Section 9.13. Appointment of Authenticating Agent
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|
|
51
|
|
Section 9.14. Trustees Application for Instruction from the Company
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|
|
52
|
|
|
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|
|
ARTICLE X. SUPPLEMENTAL INDENTURES AND CERTAIN ACTIONS
|
|
|
53
|
|
|
|
|
|
|
Section 10.01. Purposes for Which Supplemental Indentures May Be Entered Into Without Consent of Holders
|
|
|
53
|
|
Section 10.02. Modification of Indenture with Consent of Holders of at Least a Majority in Principal Amount of Outstanding Securities
|
|
|
54
|
|
Section 10.03. Execution of Supplemental Indentures
|
|
|
55
|
|
Section 10.04. Effect of Supplemental Indentures
|
|
|
55
|
|
Section 10.05. Conformity with Trust Indenture Act
|
|
|
55
|
|
Section 10.06. Reference in Securities to Supplemental Indentures
|
|
|
55
|
|
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|
|
ARTICLE XI. CONSOLIDATION, MERGER, SALE, OR TRANSFER
|
|
|
55
|
|
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|
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|
|
Section 11.01. Consolidations and Mergers of Company and Sales Permitted Only on Certain Terms
|
|
|
55
|
|
-iv-
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
Page
|
|
ARTICLE XII. GUARANTEES
|
|
|
56
|
|
|
|
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|
|
Section 12.01. Guarantees
|
|
|
56
|
|
Section 12.02. Limitation on Liability; Termination, Release and Discharge
|
|
|
58
|
|
Section 12.03. No Subrogation
|
|
|
58
|
|
|
|
|
|
|
ARTICLE
XIII. SATISFACTION AND DISCHARGE OF INDENTURE
|
|
|
59
|
|
|
|
|
|
|
Section 13.01. Satisfaction and Discharge of Indenture
|
|
|
59
|
|
Section 13.02. Application of Trust Money
|
|
|
59
|
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ARTICLE XIV. MISCELLANEOUS PROVISIONS
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60
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Section 14.01. Successors and Assigns of Company Bound by Indenture
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60
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Section 14.02. Service of Required Notice to Trustee and Company
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60
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Section 14.03. Service of Required Notice to Holders; Waiver
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60
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Section 14.04. Indenture and Securities to be Construed in Accordance with the Laws of the State of New York
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61
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Section 14.05. Compliance Certificates and Opinions
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61
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Section 14.06. Form of Documents Delivered to Trustee
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61
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Section 14.07. Payments Due on Non-Business Days
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61
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Section 14.08. Provisions Required by Trust Indenture Act to Control
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61
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Section 14.09. Invalidity of Particular Provisions
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62
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Section 14.10. Indenture May be Executed In Counterparts
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62
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Section 14.11. Acts of Holders; Record Dates
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62
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Section 14.12. Effect of Headings and Table of Contents
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64
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Section 14.13. Benefits of Indenture
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64
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-v-
Indenture
,
dated as of November 2, 2006, by and among Federated Retail Holdings, Inc., a
corporation duly organized and existing under the laws of the State of New York (the Company), as
Issuer, Federated Department Stores, Inc., a corporation duly organized and existing under the laws
of the State of Delaware (Parent), as Guarantor, and U.S. Bank National Association, a national
banking association duly incorporated and existing under the laws of the United States of America
(herein called the Trustee), as Trustee.
Recitals
A. 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 Companys unsecured debentures,
notes, and other evidences of indebtedness (the Securities), to be issued in one or more series
as in this Indenture provided.
B. The Securities of each series will be in substantially the form set forth below, or in
such other form as may be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions, and other variations as are required or permitted by this Indenture, and may have
such letters, numbers, or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities, as evidenced by
their execution of the Securities.
[Form of Face of Security]
[Insert any legend required by the Internal
Revenue Code and the regulations thereunder.]
Federated Retail Holdings, Inc.
CUSIP No. ____
Federated Retail Holdings, Inc., a corporation duly organized and existing under the laws of
the State of New York (hereinafter called the Company, which term includes any successor Person
under the Indenture hereinafter referred to), for value received,
hereby promises to pay to ___, or
registered assigns, the principal sum of $____on___ [
if the Security is to bear interest prior to
Maturity, insert
: , and to pay interest thereon from
__ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, on
and
___ in each year, commencing on ___, at the
rate of ___ % per annum, until the
principal hereof is paid or made available for payment [
if applicable, insert
: , and at
the rate of _______% per annum on any overdue principal and premium and on any overdue installment of
interest]. The interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which will be
the ___ or ___
(whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof will be given to Holders of Securities of this series not less than 10 calendar days prior
to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange, all as more fully provided in
said Indenture].
[
If the Security is not to bear interest prior to Maturity, insert
: The principal of
this Security will not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption, or at Stated Maturity, and in such case the overdue principal of
this Security will bear interest at the rate of ____% per annum which will accrue from the
date of such default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal will be payable on demand. Any such interest on
any overdue principal that is not so paid on demand will bear interest at the rate of ___%
per annum which will accrue from the date of such demand for payment to the date payment of such
interest has been made or duly provided for, and such interest will also be payable on demand.]
Payment of the principal of (and premium, if any) and [
if applicable, insert
: any
such] interest on this Security will be made at the office or agency of the Company maintained for
the purpose in ___, in such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts [
if applicable, insert
: ;
provided
,
however
, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such address appears in the
Security Register].
Federated Department Stores, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the Parent), has fully and unconditionally guaranteed the
payment of principal, premium, if any, and interest on the Security.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS SET FORTH ON THE REVERSE HEREOF. SUCH
PROVISIONS WILL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH IN THIS PLACE.
This Security will not be valid or become obligatory for any purpose until the certificate of
authentication herein has been signed manually by the Trustee under the Indenture referred to on
the reverse side hereof.
2
In Witness Whereof, this instrument has been duly executed in accordance with the Indenture.
Federated Retail Holdings, Inc.
By:
Attest:
By:
[Form of Reverse of Security]
Federated Retail Holdings, 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
___, 2006 (herein called the Indenture), by and among the Company, as Issuer, the Parent, as
Guarantor, and U.S. Bank National Association, a national banking association duly incorporated and
existing under the laws of the United States of America, 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 Guarantor, the
Trustee, and the Holders of the Securities and of the terms upon which the Securities are, and are
to be, authenticated and delivered. This Security is one of the series designated on the face
hereof [
if applicable, insert
: , limited in aggregate principal amount to $___].
[
If applicable, insert
: The Securities of this series are subject to redemption upon
not less than 30 calendar days notice by mail,[
if applicable, insert
: (a) on ___ in each year commencing with the year
and ending with the year
through operation of the sinking fund for this series at a Redemption Price equal to
100% of the principal amount, and (b)] at any time [
if applicable, insert
: on or after
___ , ___], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount): If redeemed [
If
applicable, insert
: on or before
,
%, and if redeemed]
during the 12-month period beginning
of the years indicated,
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Redemption
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Redemption
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Year
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Price
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Year
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Price
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3
and thereafter at a Redemption Price equal to ___% of the principal amount, together in the
case of any such redemption [
if applicable, insert
: whether through operation of the
sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest
installments the Stated Maturity of which is on or prior to such Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[
If applicable, insert
: The Securities of this series are subject to redemption upon
not less than 30 calendar days notice by mail,[
if applicable, insert
: (a) on ___
in each year commencing with the year ____ and ending with the year ___
through operation of the sinking fund for this series at the following Redemption
Prices (expressed as percentages of the principal amount) applicable to redemption through
operation of the sinking fund and (b)] at any time [
if applicable, insert
: on or after
__ , ___ ], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount) applicable to
redemption otherwise than through operation of the sinking fund: If redeemed [
If applicable,
insert
: on or before ___, ____%, and if redeemed] during the
12-month period beginning ___of the years indicated,
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Redemption Price For
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Redemption Price For
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Redemption Through
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Redemption Otherwise
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Operation of the
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Than Through Operation
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Year
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Sinking Fund
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of the Sinking Fund
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and thereafter at a Redemption Price equal to ___% of the principal amount, together in the case of
any such redemption (whether through operation of the sinking fund or otherwise) with accrued
interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[
If applicable, insert
: Notwithstanding the foregoing, the Company may not, prior to
, redeem any Securities of this series as contemplated by [
if applicable, insert
: Clause
(b) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by
the application, directly or indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less than ___% per annum.]
[
If applicable, insert
: The sinking fund for this series provides for the redemption
on ____ in each year beginning with the year
___and ending with the year
of
[
if
applicable, insert
: not less than $
(mandatory sinking fund) and not more than]
$
aggregate principal amount of Securities of this
4
series. Securities of this series acquired or redeemed by the Company otherwise than through
[
if applicable, insert
: mandatory] sinking fund payments may be credited against
subsequent [
if applicable, insert
: mandatory] sinking fund payments otherwise required
to be made [
if applicable, insert
: in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert
: In the event of
redemption of this Security in part only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
[If applicable, insert
: The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness evidenced by this Security or (b) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert
: If an Event of
Default with respect to Securities of this series shall occur and be continuing, the principal of
the Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert
: If an Event of
Default with respect to Securities of this series shall occur and be continuing, an amount of
principal of the Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture. Such amount will be equal to
[insert formula for
determining the amount]
. Upon payment (a) of the amount of principal so declared due and
payable and (b) of interest on any overdue principal and overdue interest, all of the Companys
obligations in respect of the payment of the principal of and interest, if any, on the Securities
of this series will terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company, the Guarantor and the rights of the
Holders of the Securities of each series to be affected under the Indenture at any time by the
Company, the Guarantor and the Trustee with the consent of the Holders of a majority in principal
amount of the Securities at the time Outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such consent or waiver by
the Holder of this Security will be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon
this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
will not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
5
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a direction inconsistent with
such request and shall have failed to institute such proceeding for 60 calendar days after receipt
of such notice, request, and offer of indemnity. The foregoing will apply to any suit instituted
by the Holder of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture
will alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security at the times, place, and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is 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, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee, and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security shall be
overdue, and neither the Company, the Trustee, nor any such agent will be affected by notice to the
contrary.
All terms used in this Security that are defined in the Indenture will have the respective
meanings assigned to them in the Indenture.
6
C. The Trustees certificate of authentication will be in substantially the following form:
[Form of Trustees Certificate Of Authentication for Securities]
Trustees Certificate of Authentication
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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U.S. Bank National Association,
as Trustee
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Dated:
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By:
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Authorized Signatory
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D. Every Global Security authenticated and delivered hereunder will bear a legend in
substantially the following form:
[Form of Legend for Global Securities]
This Security is a Global Security within the meaning of the Indenture hereinafter referred to
and is registered in the name of a Depositary or a nominee thereof. This Security may not be
transferred to, or registered or exchanged for Securities registered in the name of, any Person
other than the Depositary or a nominee thereof, and no such transfer may be registered, except in
the limited circumstances described in the Indenture. Every Security authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, this Security will be a Global
Security subject to the foregoing, except in such limited circumstances.
E. All acts and things necessary to make the Securities, when the Securities have been
executed by the Company and authenticated by the Trustee and delivered as provided in this
Indenture, the valid, binding, and legal obligations of the Company and to constitute these
presents a valid indenture and agreement according to its terms, have been done and performed, and
the execution and delivery by the Company of this Indenture and the issue hereunder of the
Securities have in all respects been duly authorized; and the Company, in the exercise of legal
right and power in it vested, is executing and delivering this Indenture and proposes to make,
execute, issue, and deliver the Securities.
Now, Therefore, this Indenture Witnesseth:
In order to declare the terms and conditions upon which the Securities are authenticated,
issued, and delivered, and in consideration of the premises and of the purchase and acceptance of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for the
7
equal and proportionate benefit of the respective Holders from time to time of the Securities
or of a series thereof, as follows:
ARTICLE I. DEFINITIONS.
Section 1.01. Certain Terms Defined.
(a) The terms defined in this Section 1.01 (except as herein otherwise expressly provided or
unless the context of this Indenture otherwise requires) for all purposes of this Indenture and of
any indenture supplemental hereto have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture that are defined in the Trust Indenture Act, either directly or
by reference therein (except as herein otherwise expressly provided or unless the context of this
Indenture otherwise requires), have the respective meanings assigned to such terms in the Trust
Indenture Act as in force at the date of this Indenture as originally executed.
Act
:
The term Act, when used with respect to any Holder, has the meaning set forth in Section
14.11.
Affiliate
:
The term Affiliate means, with respect to a particular Person, any Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with, such Person. For
purposes of this definition, control of a Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms controlling and controlled have meanings
correlative of the foregoing.
Authenticating Agent
:
The term Authenticating Agent means any Person authorized by the Trustee pursuant to Section
9.13 to act on behalf of the Trustee to authenticate Securities of one or more series.
Board of Directors
:
The term Board of Directors means the Board of Directors of the Company or a duly authorized
committee of such Board of Directors.
Board Resolution
:
The term Board Resolution means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company or the Guarantor, as applicable, to have been duly adopted by
the Board of Directors of the Company or the board of directors of the Guarantor, as applicable,
and to be in full force and effect on the date of such certification, and delivered to the Trustee.
8
Business Day
:
The term Business Day, when used with respect to any Place of Payment, means each Monday,
Tuesday, Wednesday, Thursday, and Friday which is not a day on which banking institutions in that
Place of Payment are authorized or required by law or executive order to close and the Federal
Reserve Banks Fedwire Service is operating.
Capital Lease
:
The term Capital Lease means, with respect to any Person, any lease of property (whether
real, personal, or mixed) by such Person or its Subsidiaries as lessee that would be capitalized on
a balance sheet of such Person or its Subsidiaries prepared in conformity with GAAP, other than, in
the case of such Person or its Subsidiaries, any such lease under which such Person or any of its
Subsidiaries is the lessor.
Capital Lease Obligation
:
The term Capital Lease Obligations means, with respect to any Person, the capitalized amount
of all obligations of such Person and its Subsidiaries under Capital Leases, as determined on a
consolidated basis in conformity with GAAP.
Commission
:
The term Commission means the U.S. Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such time.
Common Stock
:
The term Common Stock means the common stock, par value $.01 per share, of the Parent.
Company
:
The term Company means Federated Retail Holdings, Inc., a New York corporation, until a
successor Person shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter Company will mean such successor Person.
Company Request or Company Order
:
The term Company Request or Company Order means a written request or order signed in the
name of the Company by the President, a Vice President, the Treasurer, an Assistant Treasurer, the
Secretary, or an Assistant Secretary of the Company, and delivered to the Trustee.
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Corporate Trust Office
:
Corporate
Trust Office means the office of the Trustee at which at any
particular time the trust created by this Indenture shall be administered,
which at the date of initial execution of this Indenture is One
Federal Street, 3rd Floor, Boston, Massachusetts 02110, Attention: Corporate
Trust Services; except that
with respect to the presentation of Securities for payment or for
registration of transfer or exchange, such term shall mean the office
or agency of the Trustee in the Borough of Manhattan, The City of New
York, at which at any particular
time its corporate trust services business shall be conducted, which office
at the date of initial execution of this Indenture is U.S. Bank Trust
National Association, an Affiliate of the Trustee, 100 Wall
Street, Suite 1600, New York, New York 10005, Attention:
Corporate Trust Services.
Covenant Defeasance
:
The term Covenant Defeasance has the meaning set forth in Section 5.03.
Default
:
The term Default means any event which, with notice or passage of time or both, would
constitute an Event of Default.
Defaulted Interest
:
The term Defaulted Interest has the meaning set forth in Section 2.09.
Defeasance
:
The term Defeasance has the meaning set forth in Section 5.02.
Defeasible Series
:
The term Defeasible Series has the meaning set forth in Section 5.01.
Depositary
:
The term Depositary means, with respect to Securities of any series issuable in whole or in
part in the form of one or more Global Securities, a clearing agency registered under the Exchange
Act that is designated to act as Depositary for such Securities as contemplated by Section 2.01.
Event of Default
:
The term Event of Default has the meaning set forth in Section 8.01(a).
Exchange Act
:
10
The term Exchange Act means the Securities Exchange Act of 1934, as amended, or any similar
federal statute, and the rules and regulations of the Commission thereunder, as the same may be in
effect from time to time.
GAAP
:
The term GAAP means generally accepted accounting principles in the United States of America
as in effect from time to time set forth in the opinions and pronouncements of the Accounting
Principles Board and The American Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board, or in such other statements by any
other entity or successor entity as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of the date of determination.
Global Security
:
The term Global Security means a Security that evidences all or part of the Securities of
any series and is authenticated and delivered to, and registered in the name of, the Depositary for
such Securities or a nominee thereof.
Guarantee
:
The term Guarantee means the Guarantors guarantee of the Securities as provided in Article
XII.
Guarantor
:
The term Guarantor means the Parent, as the guarantor of the Securities as provided in
Article XII.
Holder
:
The term Holder means a Person in whose name a particular Security is registered in the
Security Register.
Indebtedness
:
The term Indebtedness means, as applied to any Person, without duplication:
(a) all obligations of such Person for borrowed money;
(b) all obligations of such Person for the deferred purchase price of property or services
(other than property and services purchased, and expense accruals and deferred compensation items
arising, in the ordinary course of business);
(c) all obligations of such Person evidenced by notes, bonds, debentures, mandatorily
redeemable preferred stock, or other similar instruments (other than performance, surety, and
appeals bonds arising in the ordinary course of business);
11
(d) all payment obligations created or arising under any conditional sale, deferred price, or
other title retention agreement with respect to property acquired by such Person (unless the rights
and remedies of the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property);
(e) any Capital Lease Obligation of such Person;
(f) all reimbursement, payment, or similar obligations, contingent or otherwise, of such
Person under acceptance, letter of credit, or similar facilities (other than letters of credit in
support of trade obligations or incurred in connection with public liability insurance, workers
compensation, unemployment insurance, old-age pensions, and other social security benefits other
than in respect of employee benefit plans subject to ERISA);
(g) all obligations of such Person, contingent or otherwise, under any guarantee by such
Person of the obligations of another Person of the type referred to in clauses (a) through (f)
above; and
(h) all obligations referred to in clauses (a) through (f) above secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any
mortgage or security interest in property (including without limitation accounts, contract rights,
and general intangibles) owned by such Person and as to which such Person has not assumed or become
liable for the payment of such obligations other than to the extent of the property subject to such
mortgage or security interest;
provided
,
however
, that Indebtedness of the type referred to in clauses (g) and (h)
above shall be included within the definition of Indebtedness only to the extent of the least of:
(i) the amount of the underlying Indebtedness referred to in the applicable clause (a) through (f)
above; (ii) in the case of clause (g), the limit on recoveries, if any, from such Person under
obligations of the type referred to in clause (g) above; and (iii) in the case of clause (h), the
aggregate value (as determined in good faith by the board of directors or similar governing body of
such Person) of the property of such Person subject to such mortgage or security interest.
Indenture
:
The term Indenture means this Indenture, as this Indenture may be amended, supplemented, or
otherwise modified from time to time, including, for all purposes of this Indenture and any
indenture supplemental hereto, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Indenture and any such supplemental indenture, respectively. The term
Indenture also includes the terms of particular series of Securities established in accordance
with Section 2.01.
Interest
:
The term interest, (a) when used with respect to an Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest which accrues from and after and is
payable after Maturity and (b) when used with respect to any Security, means the amount of all
interest accruing on such Security, including any default interest and any interest that would have
accrued after any Event of Default but for the occurrence of such Event of
12
Default, whether or not a claim for such interest would be otherwise allowable under
applicable law.
Interest Payment Date
:
The term Interest Payment Date, when used with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
Issuer
:
The term Issuer means the Company, as the issuer of the Securities described in this
Indenture.
Material Adverse Effect
:
The term Material Adverse Effect means a material adverse effect on the business, assets,
financial condition or results of operations of the Company (taken together with its Subsidiaries
as a whole).
Maturity
:
The term Maturity, when used with respect to any Security, means the date on which the
principal of that Security or an installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of acceleration, call for
redemption, or otherwise.
Notice of Default
:
The term Notice of Default means a written notice of the kind set forth in Section
8.01(a)(iv).
Obligation
:
The term Obligation has the meaning set forth in Section 12.01.
Officers Certificate
:
The term Officers Certificate means a certificate executed on behalf of the Company or the
Guarantor, as applicable, by a Responsible Officer and delivered to the Trustee.
Opinion of Counsel
:
The term Opinion of Counsel means an opinion in writing signed by legal counsel, who,
subject to any express provisions hereof, may be an employee of or counsel for the Company, any
Subsidiary of the Company, or the Guarantor, as applicable, reasonably acceptable to the Trustee.
13
Original Issue Discount Security
:
The term Original Issue Discount Security means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 8.01(b).
Outstanding
:
The term Outstanding means, when used with reference to Securities as of a particular time,
all Securities theretofore issued by the Company and authenticated and delivered by the Trustee
under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(b) Securities for the payment or redemption of which money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company is acting as its own Paying Agent) for
the Holders of such Securities;
provided
that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(c) Securities in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid obligations of the Company;
provided
,
however
, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent, or waiver hereunder:
(i) the principal amount of an Original Issue Discount Security that will be deemed to
be Outstanding will be the amount of the principal thereof that would be due and payable as
of the date of such determination upon acceleration of the Maturity thereof to such date
pursuant to Section 8.01(b);
(ii) the principal amount of a Security denominated in one or more foreign currencies
or currency units will be the U.S. dollar equivalent, determined in the manner contemplated
by Section 2.01 on the date of original issuance of such Security, of the principal amount
(or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent on the
date of original issuance of such Security of the amount determined as provided in clause
(i) above) of such Security; and
(iii) Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor will be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee will be protected in relying
upon any such request, demand, authorization, direction, notice,
14
consent, or waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned will be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgees 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.
Parent
:
The term Parent means Federated Department Stores, Inc., a corporation duly organized and
existing under the laws of the State of Delaware.
Paying Agent
:
The term Paying Agent means any Person authorized by the Company to pay the principal of or
any premium or interest on any Securities on behalf of the Company.
Person
:
The term Person means any individual, partnership, corporation, limited liability company,
joint stock company, business trust, trust, unincorporated association, joint venture, or other
entity, or government or political subdivision or agency thereof.
Place of Payment
:
The term Place of Payment, when used with respect to the Securities of any series, means the
place or places specified for the payment of the principal of and any premium and interest on the
Securities of that series as contemplated by Section 2.01.
Predecessor Security
:
The term Predecessor Security, when used with respect to any particular Security, means
every previous Security evidencing all or a portion of the same debt as that evidenced by such
Security; and, for the purposes of this definition, any Security authenticated and delivered under
Section 2.07 in exchange for or in lieu of a mutilated, destroyed, lost, or stolen Security will be
deemed to evidence the same debt as the mutilated, destroyed, lost, or stolen Security.
Redemption Date
:
The term Redemption Date, when used with respect to any Security to be redeemed, means the
date fixed for such redemption by or pursuant to this Indenture.
Redemption Price
:
15
The term Redemption Price, when used with respect to any Security to be redeemed, means the
price (including premium, if any) at which it is to be redeemed pursuant to this Indenture.
Regular Record Date
:
The term Regular Record Date for the interest payable on any Interest Payment Date on the
Securities of any series means the date specified for that purpose as contemplated by Section 2.01.
Responsible Officer
:
The term Responsible Officer, when used:
(a) with respect to the Company, means the Chairman, the President, a Vice President, the
Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary, an Assistant
Secretary or any other officer of the Company appointed by the Board of Directors;
(b) with respect to the Guarantor, means the Chairman, a Deputy Chairman, a Vice Chairman, the
Chief Executive Officer, the President, a Vice President, the Chief Financial Officer, the
Treasurer, an Assistant Treasurer, the Secretary, an Assistant Secretary or any other officer of
the Guarantor appointed by the board of directors of the Guarantor; and
(c) with respect to the Trustee, means the Chairman or any Vice Chairman of the board of
directors, the Chairman or any Vice Chairman of the executive committee of the board of directors,
the Chairman of the trust committee, the President, any Vice President, any Assistant Vice
President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the
Cashier, any Assistant Cashier, any Senior Trust Officer, any Trust Officer or Assistant Trust
Officer, the Controller or any Assistant Controller, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the particular subject.
Securities
:
The term Securities has the meaning set forth in the first recital of this Indenture and
more particularly means any Securities authenticated and delivered under this Indenture.
Security Register and Security Registrar
:
The terms Security Register and Security Registrar have the respective meanings set forth
in Section 2.05.
Special Record Date
:
16
The term Special Record Date for the payment of any Defaulted Interest means a date fixed by
the Trustee pursuant to Section 2.09.
Stated Maturity
:
The term Stated Maturity, when used with respect to any Security, any installment of
interest thereon, or any other amount payable under this Indenture or the Securities, means the
date specified in this Indenture or such Security as the regularly scheduled date on which the
principal of such Security, such installment of interest, or such other amount, is due and payable.
Subsidiary
:
The term Subsidiary means, as applied with respect to any Person, any corporation,
partnership, or other business entity of which, in the case of a corporation, more than 50% of the
issued and outstanding capital stock having ordinary voting power to elect a majority of the board
of directors of such corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation has or might have voting power upon the occurrence of any
contingency), or, in the case of any partnership or other legal entity, more than 50% of the
ordinary equity capital interests, is at the time directly or indirectly owned or controlled by
such Person, by such Person and one or more of its other Subsidiaries, or by one or more of such
Persons other Subsidiaries.
Trust Indenture Act
:
The term Trust Indenture Act means the Trust Indenture Act of 1939, as amended, as in force
at the date as of which this instrument was executed;
provided
,
however
, that in
the event the Trust Indenture Act of 1939 is amended after such date, Trust Indenture Act means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
Trustee
:
The term Trustee means the Person named as the Trustee in the first paragraph of this
Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter Trustee will mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, Trustee as used with respect to
the Securities of any series will mean each Trustee with respect to Securities of that series.
U.S. Government Obligation
:
The term U.S. Government Obligation means:
(a) any security that is (i) a direct obligation of the United States of America for the
payment of which 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
17
guaranteed as a full faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof; and
(b) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any U.S. Government Obligation specified in
clause (a), which U.S. Government Obligation is held by such custodian for the account of the
holder of such depositary receipt, or with respect to any specific payment of principal of or
interest on any such U.S. Government Obligation,
provided
that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
Vice President
:
The term Vice President, when used with respect to the Company or the Trustee, means any
vice president, whether or not designated by a number or a word or words added before or after the
title vice president.
(b) The words Article and Section refer to an Article and Section, respectively, of this
Indenture. The words herein, hereof, and hereunder and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section, or other subdivision. Certain
terms used principally in Articles V, VI, and IX are defined in those Articles. Terms in the
singular include the plural and terms in the plural include the singular.
ARTICLE II. THE SECURITIES.
Section 2.01. Designation and Amount of Securities.
(a) The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited.
(b) The Securities may be issued in one or more series. There will be established in or
pursuant to a Board Resolution and, subject to Section 2.04, set forth or determined in the manner
provided in an Officers Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series:
(i) the title of the Securities of the series (which will distinguish the Securities of
the series from Securities of any other series);
(ii) any limit upon the aggregate principal amount of the Securities of the series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in the exchange for, or in
lieu of, other Securities of the series pursuant to Section 2.05, 2.06, 2.07, 3.05, or 10.06
and except for any Securities which, pursuant to Section 2.04, are deemed never to have been
authenticated and delivered hereunder);
18
(iii) the Person to whom any interest on a Security of the series will be payable, if
other than the Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest;
(iv) the date or dates on which the principal of the Securities of the series is
payable;
(v) the rate or rates at which the Securities of the series will bear interest, if any,
the date or dates from which such interest will accrue, the Interest Payment Dates on which
any such interest will be payable, and the Regular Record Date for any interest payable on
any Interest Payment Date;
(vi) the place or places where the principal of and any premium and interest on
Securities of the series will be payable;
(vii) the period or periods within which, the price or prices at which, and the terms
and conditions upon which Securities of the series may be redeemed, in whole or in part, at
the option of the Company;
(viii) the obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices at which, and the terms
and conditions upon which Securities of the series will be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(ix) if other than denominations of $1,000 and integral multiples thereof, the
denominations in which Securities of the series will be issuable;
(x) the currency, currencies, or currency units in which payment of the principal of
and any premium and interest on any Securities of the series will be payable if other than
the currency of the United States of America and the manner of determining the equivalent
thereof in the currency of the United States of America for purposes of the definition of
Outstanding in Section 1.01;
(xi) if the amount of payments of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index, based upon a formula,
or in some other manner, the manner in which such amounts will be determined;
(xii) if the principal of or any premium or interest on any Securities of the series is
to be payable, at the election of the Company or a Holder thereof, in one or more currencies
or currency units other than that or those in which the Securities are stated to be payable,
the currency, currencies, or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election is made will be
payable, and the periods within which and the terms and conditions upon which such election
is to be made;
19
(xiii) if other than the principal amount thereof, the portion of the principal amount
of Securities of the series which will be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 8.01(b);
(xiv) if applicable, that the Securities of the series will be subject to either or
both of Defeasance or Covenant Defeasance as provided in Article V,
provided
that no
series of Securities that is exchangeable into Common Stock pursuant to Section 2.01(b)(xvi)
or exchangeable for any other securities pursuant to Section 2.01(b)(xvii) will be subject
to Defeasance pursuant to Section 5.02;
(xv) if and as applicable, that the Securities of the series will be issuable in whole
or in part in the form of one or more Global Securities and, in such case, the Depositary or
Depositaries for such Global Security or Global Securities and any circumstances other than
those set forth in Section 2.05 in which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of, a Person other than the
Depositary for such Global Security or a nominee thereof and in which any such transfer may
be registered;
(xvi) the terms and conditions, if any, pursuant to which the Securities of the series
are exchangeable into Common Stock;
(xvii) the terms and conditions, if any, pursuant to which the Securities of the series
are exchangeable for any other securities, including (without limitation) securities of
Persons other than the Parent;
(xviii) any addition to or change in the Events of Default that apply 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
8.01(b);
(xix) any depositories, interest rate calculation agents or other agents with respect
to Securities of the series if other than those appointed herein; and
(xx) any other terms of, or provisions, covenants, rights or other matters applicable
to, the series (which terms, provisions, covenants, rights or other matters will not be
inconsistent with the provisions of this Indenture, except as permitted by Section
10.01(e)).
(c) All Securities of any one series will be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to below
and (subject to Section 2.04) set forth or determined in the manner provided in the Officers
Certificate referred to above or in any such indenture supplemental hereto.
(d) If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action will be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee concurrently with or prior to the
delivery of the Officers Certificate setting forth the terms of the series.
20
Section 2.02. Form of Securities and Trustees Certificate of Authentication.
(a) The Securities of each series will be in substantially the form set forth in or otherwise
contemplated by the recitals to this Indenture, with appropriate variations to reflect the specific
terms of such series. If the form of Securities of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action will be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the Trustee concurrently
with or prior to the delivery of the Company Order contemplated by Section 2.04 for the
authentication and delivery of such Securities.
(b) The definitive Securities will be printed, lithographed, or engraved on steel engraved
borders or may be produced in any other manner permitted by the rules of any securities exchange on
which the Securities may be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
(c) The Trustees certificate of authentication will be in substantially the form set forth in
the recitals to this Indenture.
(d) Every Global Security authenticated and delivered hereunder will bear a legend in
substantially the form set forth in the recitals to this Indenture.
Section 2.03. Date and Denominations.
Each Security will be dated the date of its authentication. The Securities of each series
will be issuable only in registered form without coupons in such denominations as may be specified
as contemplated by Section 2.01. In the absence of any such specified denomination with respect to
the Securities of any series, the Securities of such series will be issuable in denominations of
$1,000 and integral multiples thereof.
Section 2.04. Execution, Authentication and Delivery of Securities.
(a) The Securities will be executed on behalf of the Company by any one of the President, the
Chief Financial Officer, or any Vice President of the Company and attested by the Treasurer, the
Secretary, any Assistant Treasurer, or any Assistant Secretary of the Company under its corporate
seal. The signature of any of these officers on the Securities may be manual or facsimile. The
seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted, or otherwise reproduced on the Securities.
(b) Only such Securities bearing the Trustees certificate of authentication, signed manually
by the Trustee, will be entitled to the benefits of this Indenture or be valid or obligatory for
any purpose. Such execution of the certificate of authentication by the Trustee upon any
Securities executed by the Company will be conclusive evidence that the Securities so authenticated
have been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in
Section 2.08, for all purposes of this Indenture such Security will be deemed never to have been
authenticated and delivered hereunder and will never be entitled to the benefits of this Indenture.
21
(c) Securities bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company will bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
(d) At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee will authenticate and deliver such Securities in accordance with such
Company Order. If the terms or form of the Securities of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 2.02, in authenticating
such Securities, and accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee will be entitled to receive, and (subject to Section 9.01) will be
fully protected in relying upon, an Opinion of Counsel stating:
(i) if the form of such Securities has been established by or pursuant to a Board
Resolution as permitted by Section 2.02, that such form has been established in conformity
with the provisions of this Indenture;
(ii) if the terms of such Securities have been established by or pursuant to a Board
Resolution as permitted by Section 2.01, that such terms have been established in conformity
with the provisions of this Indenture; and
(iii) that such Securities, when authenticated and delivered by the Trustee and issued
by the Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and binding obligations of the Company enforceable in
accordance with their terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other laws relating to or affecting
creditors rights and by general principles of equity.
(e) Notwithstanding the provisions of Sections 2.01 and 2.04(d), if all Securities of a series
are not to be originally issued at one time, it will not be necessary to deliver the Officers
Certificate otherwise required pursuant to Section 2.01 or the Company Order and Opinion of Counsel
otherwise required pursuant to Section 2.04(d) at or prior to the time of authentication of each
Security of such series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
Section 2.05. Registration of Transfer and Exchange.
(a) The Company will cause to be kept at the Corporate Trust Office a register (the register
maintained in such office and in any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the Security Register) in which, subject to
such reasonable regulations as it may prescribe, the Company will provide for the registration of
Securities and of transfers of Securities. The Trustee is hereby appointed Security Registrar
for the purpose of registering Securities and transfers of Securities as herein provided.
22
(b) Upon surrender for registration of transfer of any Security of any series at the office or
agency in a Place of Payment for that series, the Company will execute, and the Trustee will
authenticate and deliver, in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of a like aggregate principal
amount and tenor.
(c) At the option of the Holder, Securities of any series may be exchanged for other
Securities of the same series, of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company will execute, and the Trustee
will authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive.
(d) Every Security presented or surrendered for registration of transfer or exchange will (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument or instruments of transfer, in form reasonably satisfactory to the Company and the
Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge will be made for any registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 2.06, 3.05, or 10.06 not involving any transfer. The Company
will not be required (i) to issue, register the transfer of, or exchange Securities of any series
during a period beginning at the opening of business 15 calendar days before the mailing of a
notice of redemption of Securities of that series selected for redemption under Section 3.02(c) and
ending at the close of business on the day of such mailing or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except, in the case of any
Securities to be redeemed in part, the portion thereof not being redeemed.
(e) All Securities issued upon any registration of transfer or exchange of Securities will be
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
(f) Notwithstanding any other provision in this Indenture, no Global Security may be
transferred to, or registered or exchanged for Securities registered in the name of, any Person
other than the Depositary for such Global Security or any nominee thereof, and no such transfer may
be registered, unless:
(i) such Depositary (A) notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Security or (B) ceases to be a clearing agency registered
under the Exchange Act;
(ii) the Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so transferable, registrable, and exchangeable, and such transfers shall
be registrable;
23
(iii) there shall have occurred and be continuing an Event of Default with respect to
the Securities evidenced by such Global Security; or
(iv) there shall exist such other circumstances, if any, as have been specified for
this purpose as contemplated by Section 2.01.
Notwithstanding any other provision in this Indenture, a Global Security to which the
restriction set forth in the preceding sentence shall have ceased to apply may be transferred only
to, and may be registered and exchanged for Securities registered only in the name or names of,
such Person or Persons as the Depositary for such Global Security shall have directed and no
transfer thereof other than such a transfer may be registered. Every Security authenticated and
delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security to
which the restriction set forth in the first sentence of this Section 2.05(f) shall apply, whether
pursuant to this Section 2.05, Section 2.06, 2.07, 3.05, or 10.06 or otherwise, will be
authenticated and delivered in the form of, and will be, a Global Security.
Section 2.06. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute and
register, and upon Company Order the Trustee will authenticate and deliver, temporary Securities
(printed, lithographed, or typewritten) of any authorized denomination, and substantially in the
form of the definitive Securities but with such omissions, insertions, and variations as may be
appropriate for temporary Securities, all as may be determined by the officers of the Company
executing such Securities as evidenced by their execution of such Securities;
provided
,
however
, that the Company will use reasonable efforts to have definitive Securities of that
series available at the times of any issuance of Securities under this Indenture. Every temporary
Security will be executed and registered by the Company and be authenticated by the Trustee upon
the same conditions and in substantially the same manner, and with like effect, as the definitive
Securities. The Company will execute and register and furnish definitive Securities of such series
as soon as practicable and thereupon any or all temporary Securities of such series may be
surrendered in exchange therefor at the office or agency of the Company in the Place of Payment for
that series, and the Trustee will authenticate and deliver in exchange for such temporary
Securities of such series one or more definitive Securities of the same series, of any authorized
denominations, and of a like aggregate principal amount and tenor. Such exchange will be made by
the Company at its own expense and without any charge to the Holder therefor. Until so exchanged,
the temporary Securities of any series authenticated and delivered hereunder will be entitled to
the same benefits under this Indenture as definitive Securities of the same series authenticated
and delivered hereunder.
Section 2.07. Mutilated, Destroyed, Lost, and Stolen Securities.
(a) If any mutilated Security is surrendered to the Trustee, the Company will execute and the
Trustee will authenticate and deliver in exchange therefor a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously outstanding.
24
(b) If there shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss, or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company will execute and the Trustee will authenticate and deliver, in lieu of
any such destroyed, lost, or stolen Security, a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
(c) In case any such mutilated, destroyed, lost, or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
(d) Upon the issuance of any new Security under this Section 2.07, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
(e) Every new Security of any series issued pursuant to this Section 2.07 in exchange for any
mutilated Security or in lieu of any destroyed, lost, or stolen Security will constitute an
original additional contractual obligation of the Company, whether or not the mutilated, destroyed,
lost, or stolen Security shall be at any time enforceable by anyone, and will be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Securities of
that series duly issued hereunder.
(f) The provisions of this Section 2.07 are exclusive and will preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost, or stolen Securities.
Section 2.08. Cancellation of Surrendered Securities.
All Securities surrendered for payment, redemption, registration of transfer or exchange, or
for credit against any sinking fund payment will, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and will be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold, and all Securities so
delivered will be promptly cancelled by the Trustee. No Securities will be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section 2.08, except as
expressly permitted by this Indenture. The Trustee shall destroy all cancelled Securities held by
the Trustee and shall send a certificate of such destruction to the Company.
Section 2.09. Payment of Interest; Interest Rights Preserved.
(a) Except as otherwise provided as contemplated by Section 2.01 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date will be paid to the Person in whose
25
name that Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
(b) Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called Defaulted Interest) will forthwith
cease to be payable to the Holder on the relevant regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company together with interest thereon (to
the extent permitted by law) at the rate of interest applicable to such Security, at its election
in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted Interest (and interest
thereon, if any) to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which will be fixed in the following
manner. The Company will notify the Trustee in writing of the amount of Defaulted Interest
(and interest thereon, if any) proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company will deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest (and interest thereon, if any) or will make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest (and interest thereon, if any) as in this clause (i) provided. Thereupon the
Trustee will fix a Special Record Date for the payment of such Defaulted Interest (and
interest thereon, if any) which will be not more than 15 calendar days and not less than 10
calendar days prior to the date of the proposed payment and not less than 10 calendar days
after the receipt by the Trustee of the notice of the proposed payment. The Trustee will
promptly notify the Company of such Special Record Date and, in the name and at the expense
of the Company, will cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security Register, not less
than 10 calendar days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest (and interest thereon, if any) and the Special Record Date therefor
having been so mailed, such Defaulted Interest will be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and will no longer be payable pursuant to
the following clause (ii).
(ii) The Company may make payment of any Defaulted Interest (and interest thereon, if
any) on the Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause (ii), such manner of payment
shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section 2.09, each Security delivered under
this Indenture upon registration of transfer of or in exchange for or in lieu of any
26
other Security will carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
Section 2.10. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee,
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of and
any premium and (subject to Section 2.09) any interest on such Security and for all other purposes
whatsoever, whether or not such Security shall be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee will be affected by notice to the contrary.
Section 2.11. Computation of Interest.
Except as otherwise specified as contemplated by Section 2.01 for Securities of any series,
interest on the Securities of each series will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
Section 2.12. CUSIP Numbers.
The Company in issuing any series of the Securities may use CUSIP numbers, if then generally
in use, and thereafter with respect to such series, the Trustee may use such numbers in any notice
of redemption or exchange with respect to such series
provided
that any such notice may
state that no representation is made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will promptly notify the
Trustee of any change in the CUSIP numbers.
ARTICLE III. REDEMPTION OF SECURITIES.
Section 3.01. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity will be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 2.01
for Securities of any series) in accordance with this Article III.
Section 3.02. Election to Redeem; Notice to Trustee.
(a) The election of the Company to redeem any Securities will be evidenced by a Board
Resolution. In case of any redemption at the election of the Company of less than all the
Securities of any series, the Company will, at least 60 calendar days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in
27
this Indenture, the Company will furnish the Trustee with an Officers Certificate evidencing
compliance with such restriction.
(b) Notice of redemption of Securities to be redeemed at the election of the Company will be
given by the Company or, at the Companys request, by the Trustee in the name and at the expense of
the Company and will be irrevocable. Notice of redemption will be given by mail, first-class
postage prepaid, not less than 30 nor more than 60 calendar days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the Security Register. All
notices of redemption will state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption of any Securities, the principal
amounts) of the particular Securities to be redeemed;
(iv) that on the Redemption Date the Redemption Price will become due and payable upon
each such Security to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;
(v) the place or places where such Securities are to be surrendered for payment of the
Redemption Price;
(vi) that the redemption is for a sinking fund, if such is the case; and
(vii) the specific provision of this Indenture pursuant to which such Securities are to
be redeemed.
(c) If less than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed will be selected not more than 60 calendar days prior to the Redemption
Date by the Trustee, from the Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee may deem fair and appropriate and which may provide for
the selection for redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination for Securities of
that series. The Trustee will promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
(d) For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities will relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
28
Section 3.03. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on any Redemption Date specified in the notice of
redemption given as provided in Section 3.02, the Company will deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 6.03) an amount of money sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) any accrued interest on, all of the
Securities that are to be redeemed on that date.
Section 3.04. Securities Payable on Redemption Date.
(a) Notice of redemption having been given as aforesaid, the Securities so to be redeemed
will, on the Redemption Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless the Company defaults in the payment of the Redemption Price and
accrued interest) such Securities will cease to accrue interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security will be paid by the Company
at the Redemption Price, together with accrued interest to the Redemption Date;
provided
,
however
, that, unless otherwise specified as contemplated by Section 2.01, installments of
interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates in accordance with their terms and the provisions of Section
2.09.
(b) If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium will, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
Section 3.05. Securities Redeemed in Part.
Any Security that is to be redeemed only in part will be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company will execute, and the
Trustee will authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE IV. SINKING FUNDS.
Section 4.01. Applicability of Article.
The provisions of this Article IV will be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section 2.01 for Securities
of such series. The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a mandatory sinking fund payment, and any
payment in excess of such minimum amount provided for by the terms of Securities of any series is
herein referred to as an optional sinking fund payment. If provided for by the
29
terms of Securities of any series, the amount of any sinking fund payment may be subject to
reduction as provided in Section 4.02. Each sinking fund payment with respect to Securities of a
particular series will be applied to the redemption of Securities of such series as provided for by
the terms of Securities of such series.
Section 4.02. Satisfaction of Sinking Fund Payments With Securities.
The Company (a) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (b) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series, provided that such Securities have not been
previously so credited. Such Securities will be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption through operation of
the sinking fund and the amount of such sinking fund payment will be reduced accordingly.
Section 4.03. Redemption of Securities for Sinking Fund.
Not less than 60 calendar days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers Certificate specifying the amount
of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, that is to be satisfied by payment of cash and the portion thereof, if
any, that is to be satisfied by delivering and crediting Securities of that series pursuant to
Section 4.02 and will also deliver to the Trustee any Securities to be so delivered. Not less than
30 calendar days before each such sinking fund payment date, the Trustee will select the Securities
to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02(c) and
cause notice of the redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 3.02(b). Such notice having been duly given, the redemption of
such Securities will be made upon the terms and in the manner stated in Sections 3.04 and 3.05.
ARTICLE V. DEFEASANCE AND COVENANT DEFEASANCE.
Section 5.01. Companys Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option by Board Resolution at any time, to have either Section
5.02 or Section 5.03 applied to the Outstanding Securities of any series designated pursuant to
Section 2.01 as being defeasible pursuant to this Article V (hereinafter called Defeasible
Series), upon compliance with the conditions set forth below in this Article V, provided that
Section 5.02 will not apply to any series of Securities that is exchangeable into Common Stock
pursuant to Section 2.01(b)(xvi) or exchangeable for any other securities pursuant to Section
2.01(b)(xvii).
30
Section 5.02. Defeasance and Discharge.
Upon the Companys exercise of the option provided in Section 5.01 to have this Section 5.02
applied to the Outstanding Securities of any Defeasible Series and subject to the proviso to
Section 5.01, the Company and the Guarantor will be deemed to have been discharged from their
respective obligations with respect to the Outstanding Securities of such series as provided in
this Section 5.02 on and after the date the conditions set forth in Section 5.04 are satisfied
(hereinafter called Defeasance). For this purpose, such Defeasance means that the Company will
be deemed to have paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations under the Securities of
such series and this Indenture insofar as the Securities of such series are concerned (and the
Trustee, at the expense of the Company, will execute proper instruments acknowledging the same),
subject to the following which will survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of Securities of such series to receive, solely from the trust fund
described in Section 5.04 and as more fully set forth in Section 5.04, payments in respect of the
principal of and any premium and interest on such Securities of such series when payments are due;
(b) the Companys obligations with respect to the Securities of such series under Sections
2.05, 2.06, 2.07, 6.02, 6.03, and 10.06;
(c) the rights, powers, trusts, duties, and immunities of the Trustee hereunder; and
(d) this Article V.
Subject to compliance with this Article V, the Company may exercise its option provided in
Section 5.01 to have this Section 5.02 applied to the Outstanding Securities of any Defeasible
Series notwithstanding the prior exercise of its option provided in Section 5.01 to have Section
5.03 applied to the Outstanding Securities of such series.
Section 5.03. Covenant Defeasance.
Upon the Companys exercise of the option provided in Section 5.01 to have this Section 5.03
applied to the Outstanding Securities of any Defeasible Series:
(a) the Company will be released from its obligations under Section 6.04, Section 11.01, and
the provisions of any indenture supplemental hereto specified in such supplemental indenture; and
(b) the occurrence of any event specified in Sections 8.01(a)(iii), 8.01(a)(iv) (with respect
to Section 6.04, Section 11.01, and the provisions of any indenture supplemental hereto specified
in such supplemental indenture), 8.01(a)(v) and 8.01(a)(ix) will be deemed not to be or result in
an Event of Default, in each case with respect to the Outstanding Securities of such series as
provided in this Section on and after the date the conditions set forth in Section 5.04 are
satisfied (hereinafter called Covenant Defeasance). For this purpose, such
31
Covenant Defeasance means that the Company may omit to comply with and will have no liability
in respect of any term, condition, or limitation set forth in any such specified Section (to the
extent specified above in the case of Section 8.01(a)(iv) or in any such specified provision of
such supplemental indenture), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or provision or by reason of any reference in any such Section or
provision to any other provision herein or in any other document, but the remainder of this
Indenture and the Securities of such series will be unaffected thereby.
Section 5.04. Conditions to Defeasance or Covenant Defeasance.
The following will be the conditions to application of either Section 5.02 or Section 5.03 to
the Outstanding Securities of any Defeasible Series:
(a) The Company or the Guarantor shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee that satisfies the requirements contemplated by Section 9.08
and agrees to comply with the provisions of this Article V applicable to it) as trust funds in
trust for the benefit of the Holders of Outstanding Securities of such series
(i) money in an amount; or
(ii) U.S. Government Obligations that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, without
reinvestment, not later than one day before the due date of any payment, money in an amount;
or
(iii) a combination thereof, in each case sufficient to pay and discharge, and which
will be applied by the Trustee (or any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on the Securities of such series on the
respective Stated Maturities or on any earlier date or dates on which the Securities of such
series shall be subject to redemption and the Company shall have given the Trustee
irrevocable instructions satisfactory to the Trustee to give notice to the Holders of the
redemption of the Securities of such series, all in accordance with the terms of this
Indenture and the Securities of such series.
(b) In the case of an election under Section 5.02, the Company shall have delivered to the
Trustee an Opinion of Counsel (from a counsel who shall not be an employee of the Company) to the
effect that (i) the Company has received from, or there has been published by, the Internal Revenue
Service a ruling; or (ii) since the date of this Indenture there has been a change in the
applicable federal income tax law, in either case to the effect that, and based thereon, such
opinion shall confirm that, the Holders of the Outstanding Securities of such series will not
recognize gain or loss for federal income tax purposes as a result of the deposit, Defeasance, and
discharge to be effected with respect to the Securities of such series and will be subject to
federal income tax on the same amount, in the same manner, and at the same times as would be the
case if such deposit, Defeasance, and discharge were not to occur.
(c) In the case of an election under Section 5.03, the Company shall have delivered to the
Trustee an Opinion of Counsel (from a counsel who shall not be an employee of
32
the Company) to the effect that the Holders of the Outstanding Securities of such series will
not recognize gain or loss for federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to the Securities of such series and will be subject to
federal income tax on the same amount, in the same manner, and at the same times as would be the
case if such deposit and Covenant Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee an Officers Certificate to the effect
that (i) the Securities of such series, if then listed on any securities exchange, will not be
delisted solely as a result of such deposit and (ii) 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.
(e) No Event of Default or event that (after notice or lapse of time or both) would become an
Event of Default shall have occurred and be continuing at the time of such deposit or, with regard
to any Event of Default or any such event specified in Sections 8.01(a)(vii) and (viii), at any
time on or prior to the 124th calendar day after the date of such deposit (it being understood that
this condition will not be deemed satisfied until after such 124th calendar day).
(f) Such Defeasance or Covenant Defeasance will not cause the Trustee to have a conflicting
interest within the meaning of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).
(g) Such Defeasance or Covenant Defeasance will not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the Company is a party or by
which it is bound.
(h) The Company shall have delivered to the Trustee a certificate from a nationally recognized
firm of independent accountants or other Person acceptable to the Trustee expressing their opinion
that the payments of principal and interest when due on the deposited U.S. Government Obligations
without reinvestment plus any deposited money without investment will provide the cash at such
times and in such amounts as will be sufficient to pay the principal of and any premium and
interest when due on the Securities of such series on the respective Stated Maturities or on any
earlier date or dates on which the Securities of such series shall be subject to redemption at the
option of the holder thereof.
(i) The Company shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
(j) Such Defeasance or Covenant Defeasance will not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act of
1940, as amended, unless such trust will be qualified under such Act or will be exempt from
regulation thereunder.
33
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Section 5.05.
|
|
Deposited Money and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions.
|
(a) Subject to the provisions of Section 6.03(e), all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for
purposes of this Section 5.05 and Section 5.06, the Trustee and any such other trustee are referred
to collectively as the Trustee) pursuant to Section 5.04 in respect of the Securities of any
Defeasible Series will be held in trust and applied by the Trustee, in accordance with the
provisions of the Securities of such series and this Indenture, to the payment, either directly or
through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of Securities of such series, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held in trust need not
be segregated from other funds except to the extent required by law.
(b) The Company will pay and indemnify the Trustee against any tax, fee, or other charge
imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 5.04
or the principal and interest received in respect thereof other than any such tax, fee, or other
charge that by law is for the account of the Holders of Outstanding Securities.
(c) Notwithstanding anything in this Article V to the contrary, the Trustee will deliver or
pay to the Company from time to time upon a Company Request any money or U.S. Government
Obligations held by it as provided in Section 5.04 with respect to Securities of any Defeasible
Series that are in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the Securities of such
series.
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Section 5.06.
|
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Reinstatement.
|
If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article V with respect to the Securities of any series by reason of any order or judgment of any
court or governmental authority enjoining, restraining, or otherwise prohibiting such application,
then the Companys obligations under this Indenture and the Securities of such series will be
revived and reinstated as though no deposit had occurred pursuant to this Article V with respect to
Securities of such series until such time as the Trustee or Paying Agent is permitted to apply all
money held in trust pursuant to Section 5.05 with respect to Securities of such series in
accordance with this Article V;
provided
,
however
, that if the Company makes any
payment of principal of or any premium or interest on any Security of such series following the
reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of
Securities of such series to receive such payment from the money so held in trust.
34
ARTICLE VI. PARTICULAR COVENANTS OF THE COMPANY.
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|
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Section 6.01.
|
|
Payment of Principal, Premium and Interest on Securities.
|
The Company, for the benefit of each series of Securities, will duly and punctually pay the
principal of and any premium and interest on the Securities of that series in accordance with the
terms of such Securities and this Indenture.
|
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Section 6.02.
|
|
Maintenance of Office or Agency.
|
(a) The Company will maintain in each Place of Payment for any series of Securities an office
or agency where Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange, and where
notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices, and demands may be made or served at
the Corporate Trust Office, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices, and demands.
(b) The Company may also from time to time designate one or more other offices or agencies
where the Securities of one or more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided
,
however
,
that no such designation or rescission will in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
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Section 6.03.
|
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Money for Securities Payments to be Held in Trust.
|
(a) If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of or any premium or interest on
any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
(b) Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to each due date of the principal of or any premium or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held
as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
(c) The Company will cause each Paying Agent for any series of Securities other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent will agree
with the Trustee, subject to the provisions of this Section 6.03, that such Paying
35
Agent will (i) comply with the provisions of the Trust Indenture Act applicable to it as a
Paying Agent and (ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of the Securities of
that series, and upon the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent for payment in respect of the Securities of that series.
(d) The Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be
held by the Trustee upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
will be released from all further liability with respect to such money.
(e) Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium, or interest has become due and
payable will be paid to the Company upon a Company Request (or, if then held by the Company, will
be discharged from such trust); and the Holder of such Security will thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, will thereupon cease;
provided
,
however
, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified therein, which will not be less
than 30 calendar days from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
Subject to Article XI, the Company will, and will cause each of its Subsidiaries to do or
cause to be done all things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory), and franchises;
provided
,
however
, that no
Subsidiary of the Company will be required to preserve its existence, and neither the Company nor
any Subsidiary of the Company will be required to preserve any such right or franchise, if the
Board of Directors of the Company determines that the loss thereof will not result in a Material
Adverse Effect.
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Section 6.05.
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Statement by Officers as to Default.
|
The Company will deliver to the Trustee, within 120 calendar days after the end of each fiscal
year of the Company ending after the date hereof, an Officers Certificate signed by the principal
executive officer, principal financial officer, or principal accounting officer of the Company
stating whether or not to the knowledge of such person after due inquiry the Company is in default
in the performance and observance of any of the terms, provisions, and
36
conditions of this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company is in default, specifying all such defaults and the nature
and status thereof of which such person may have such knowledge.
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Section 6.06.
|
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Waiver of Certain Covenants.
|
The Company may omit in any particular instance to comply with any term, provision, or
condition set forth in Section 6.04 and the provisions of any supplemental indenture specified in
such supplemental indenture, with respect to the Securities of any series if the Holders of a
majority in principal amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive compliance with such
term, provision, or condition, but no such waiver will extend to or affect such term, provision, or
condition except to the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any such term,
provision, or condition will remain in full force and effect.
ARTICLE VII. SECURITIES HOLDERS LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE.
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Section 7.01.
|
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Company to Furnish Trustee Names and Addresses of Holders.
|
The Company will furnish or cause to be furnished to the Trustee (a) semi-annually, not more
than 15 calendar days after the applicable Regular Record Date, a list for each series of
Securities, in such form as the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of such Regular Record Date and (b) at such other times as
the Trustee may request in writing, within 30 calendar days after the receipt by the Company of any
such request, a list of similar form and content as of a date not more than 15 calendar days prior
to the time such list is furnished;
excluding
from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
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Section 7.02.
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Preservation of Information; Communication to Holders.
|
(a) The Trustee will preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01
upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with respect to their rights
under this Indenture or under the Securities, and the corresponding rights and privileges of the
Trustee, will be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee nor any agent of either of them will be held
accountable by reason of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
37
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Section 7.03.
|
|
Reports by Trustee.
|
The Trustee will transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. A copy of each such report will, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities
are listed, with the Commission, and with the Company. The Company will promptly notify the
Trustee when any Securities are listed on any stock exchange or of any delisting thereof.
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Section 7.04.
|
|
Reports by Company.
|
The Company will file with the Trustee and the Commission, and transmit to Holders, such
information, documents, and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant thereto;
provided
that any such information, documents, or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act will be filed with the Trustee
within 15 calendar days after the same is so required to be filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustees receipt of such shall not constitute constructive notice of any
information contained therein, including the Companys compliance with any of its covenants
hereunder (as to which the Trustee is entitled to conclusively rely exclusively on Officers
Certificates).
ARTICLE VIII. DEFAULT.
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Section 8.01.
|
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Event of Default.
|
(a) Event of Default, wherever used herein with respect to Securities of any series, means
any one of the following events (whatever the reason for such Event of Default and whether it may
be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree,
or order of any court or any order, rule, or regulation of any administrative or governmental
body):
(i) default in the payment of any interest on any Security of that series when it
becomes due and payable, and continuance of such default for a period of 30 calendar days;
(ii) default in the payment of the principal of (or premium, if any, on) any Security
of that series when it becomes due and payable;
(iii) default in the making of any sinking fund payment in respect of any Security of
that series when it becomes due and payable;
(iv) default in the performance, or breach, of any covenant or warranty of the Company
in this Indenture (other than a covenant or warranty, a default in the performance or breach
of which is elsewhere in this Section 8.01 specifically dealt
38
with or which has expressly been included in this Indenture solely for the benefit of
one or more series of Securities other than that series), and continuance of such default or
breach for a period of 60 calendar days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a Notice of Default hereunder;
(v) any nonpayment at maturity or other default is made under any agreement or
instrument relating to any other Indebtedness of the Company (the unpaid principal amount of
which is not less than $100 million), and, in any such case, such default (A) continues
beyond any period of grace provided with respect thereto and (B) results in such
Indebtedness becoming due prior to its stated maturity or occurs at the final maturity of
such Indebtedness;
provided
,
however
, that, subject to the provisions of
Section 9.01 and 8.08, the Trustee will not be deemed to have knowledge of such nonpayment
or other default unless either (1) a Responsible Officer of the Trustee has actual knowledge
of nonpayment or other default or (2) the Trustee has received written notice thereof from
the Company, from any Holder, from the holder of any such Indebtedness or from the trustee
under the agreement or instrument relating to such Indebtedness;
(vi) any Guarantee ceases to be in full force and effect (except as contemplated by the
terms hereof), or any Guarantee is declared in a judicial proceeding to be null and void, or
the Guarantor denies or disaffirms in writing its obligations under the terms of this
Indenture or its Guarantee;
(vii) 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 a 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 their respective property, or ordering the winding up or liquidation of
their respective affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60 consecutive calendar
days;
(viii) 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 a bankrupt or
insolvent, or the consent by the Company or the Guarantor 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 the Company or
39
the Guarantor of a petition or answer or consent seeking reorganization or relief with
respect to the Company or the Guarantor, as applicable, under any applicable federal or
state bankruptcy, insolvency, reorganization, or other similar law, or the consent by the
Company or the Guarantor 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, as applicable, or of any substantial part
of their respective property pursuant to any such law, or the making by the Company or the
Guarantor of an assignment for the benefit of creditors, or the admission by the Company or
the Guarantor 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
(ix) any other Event of Default provided with respect to Securities of that series.
(b) If an Event of Default (other than an Event of Default arising under Section 8.01(a)(vii)
or (viii)) with respect to Securities of any series at the time Outstanding occurs and is
continuing, then in every case the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof) of all of the Securities of
that series to be due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal amount (or specified
amount) will become immediately due and payable. If an Event of Default under Section 8.01(a)(vii)
or (viii) occurs, then the principal of, premium, if any, and accrued interest on the Securities
shall become immediately due and payable without any declaration or other act on the part of the
Trustee or any Holder.
(c) At any time after such a declaration of acceleration with respect to Securities of any
series has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article VIII provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(i) the Company or the Guarantor has paid or deposited with the Trustee a sum
sufficient to pay (A) all overdue interest on all Securities of that series, (B) the
principal of (and premium, if any, on) any Securities of that series which have become due
otherwise than by such declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities, (C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor
in such Securities, and (D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements, and advances of the Trustee and its agents
and counsel; and
(ii) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have
40
become due solely by such declaration of acceleration, have been cured or waived as
provided in Section 8.01(d).
No such rescission will affect any subsequent default or impair any right consequent thereon.
(d) The Holders of a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series waive any past default hereunder
with respect to such series and its consequences, except a default (i) in the payment of the
principal of or any premium or interest on any Security of such series or (ii) in respect of a
covenant or provision hereof which under Article X cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series affected. Upon any such waiver,
such default will cease to exist, and any Event of Default arising therefrom will be deemed to have
been cured, for every purpose of this Indenture, but no such waiver will extend to any subsequent
or other default or impair any right consequent thereon.
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Section 8.02.
|
|
Covenant of Company to Pay to Trustee Whole Amount Due on Securities on Default in
Payment of Interest or Principal; Suits for Enforcement by Trustee.
|
(a) The Company covenants that if (i) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues for a period of 30
calendar days or (ii) default is made in the payment of the principal of (or premium, if any, on)
any Security when it becomes due and payable, the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities, the whole amount then due and payable on
such Securities for principal and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and premium and on any
overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as will be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements, and advances of the Trustee and its
agents and counsel.
(b) If an Event of Default with respect to Securities of any series occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
(c) In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee will be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee will be authorized to collect and receive any money or
other property payable or deliverable on any such claims and to distribute the same, and any
custodian, receiver, assignee, trustee, liquidator, sequestrator, or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
41
payments to the Trustee and, in the event that the Trustee consents 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 and its agents and counsel, and
any other amounts due the Trustee under Section 9.06.
(d) No provision of this Indenture will be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment, or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided
,
however
, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a creditors or other
similar committee.
(e) All rights of action and claims under this Indenture or the Securities of any series may
be prosecuted and enforced by the Trustee without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding instituted by the
Trustee will be brought in its own name as trustee of an express trust, and any recovery of
judgment will, after provision for the payment of the reasonable compensation, expenses,
disbursements, and advances of the Trustee and its agents and counsel, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been recovered.
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Section 8.03.
|
|
Application of Money Collected by Trustee.
|
Any money collected by the Trustee pursuant to this Article VIII will be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or any premium or interest, upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender thereof if fully
paid:
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|
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|
FIRST:
|
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To the payment of all amounts due the Trustee under Section 9.06;
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SECOND:
|
|
To the payment of the amounts then due and unpaid for principal of and any
premium and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority
of any kind, except to the extent that the Securities of a series are by their
express terms subordinated and subject in right of payment to the prior payment
of other indebtedness, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively; and
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THIRD:
|
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To the Company, its successors or assigns, or to such other Person that may
be lawfully entitled to receive the same.
|
42
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|
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Section 8.04.
|
|
Limitation on Suits by Holders of Securities.
|
No Holder of any Security of any series will have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of a continuing Event of
Default with respect to the Securities of that series;
(b) the Holders of not less than 25% in principal amount of the Outstanding Securities of that
series shall have made written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs,
expenses, and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 calendar days after its receipt of such notice, request, and offer of
indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities
of that series, it being understood and intended that no one or more of such Holders will have any
right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb, or prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable benefit of all of
such Holders.
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Section 8.05.
|
|
Rights and Remedies Cumulative; Delay or Omission in Exercise of Rights not a Waiver
of Event of Default.
|
(a) Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost, or stolen Securities in the last paragraph of Section 2.07, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy will, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, will not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
(b) No delay or omission of the Trustee or of any Holder of any Securities to exercise any
right or remedy accruing upon any Event of Default will impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article VIII or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
43
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Section 8.06.
|
|
Rights of Holders of Majority in Principal Amount of Outstanding Securities to Direct
Trustee.
|
The Holders of a majority in principal amount of the Outstanding Securities of any series will
have the right to direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series,
provided
that (a) such direction will not be in conflict
with any rule of law or with this Indenture and (b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
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Section 8.07.
|
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Requirement of an Undertaking to Pay Costs in Certain Suits Under the Indenture or
Against the Trustee.
|
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered, or omitted by it as Trustee, a court may
require any party litigant in such suit to file an undertaking to pay the costs of such suit, and
may assess costs against any such party litigant, in the manner and to the extent provided in the
Trust Indenture Act;
provided
that neither this Section 8.07 nor the Trust Indenture Act
will be deemed to authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company.
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Section 8.08.
|
|
Notice of Defaults.
|
If a Default occurs hereunder with respect to Securities of any series, the Trustee will give
the Holders of Securities of such series notice of such Default as and to the extent provided by
the Trust Indenture Act;
provided
,
however
, that in the case of any Default of the
character specified in Section 8.01(a)(iv) with respect to Securities of such series no such notice
to Holders will be given until at least 30 calendar days after the occurrence thereof. The Company
will give the Trustee notice of any uncured Event of Default within 10 days after any Responsible
Officer of the Company becomes aware of or receives actual notice of such Event of Default.
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Section 8.09.
|
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Unconditional Right of Holders to Receive Principal, Premium, and Interest.
|
Notwithstanding any other provision in this Indenture, the Holder of any Security will have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 2.09) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights may not be impaired without the
consent of such Holder.
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Section 8.10.
|
|
Restoration of Rights and Remedies.
|
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee, and the
44
Holders will be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders will continue as though no such
proceeding had been instituted.
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Section 8.11.
|
|
Trustee May File Proofs of Claims.
|
The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements, and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceeding relative to the Company or the Subsidiaries (or any
other obligor upon the Securities), their creditors or their property and shall be entitled and
empowered to collect and receive any monies or other property payable or deliverable on any such
claim and to distribute the same, and any custodian in any such judicial proceedings is hereby
authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements, and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee hereunder. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
ARTICLE IX. CONCERNING THE TRUSTEE.
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Section 9.01.
|
|
Certain Duties and Responsibilities.
|
The duties and responsibilities of the Trustee will be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture will require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee will be subject to the provisions of this
Section 9.01.
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Section 9.02.
|
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Certain Rights of Trustee.
|
Subject to the provisions of Section 9.01:
(a) the Trustee may conclusively rely and will be protected in acting or refraining from
acting upon, whether in its original or facsimile form, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness, or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein will be sufficiently evidenced by
a Company Request or Company Order and any resolution of the Board of Directors will be
sufficiently evidenced by a Board Resolution;
45
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering, or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers Certificate;
(d) the Trustee may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel will be full and complete authorization and protection in respect of any
action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee will be under no obligation to exercise any of the rights or powers vested in
it by this Indenture, at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses, and liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee will not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness, or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it will be entitled to examine the books, records, and premises of the Company,
personally or by agent or attorney, at the sole reasonable cost of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee will not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by
it in good faith and reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture.
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Section 9.03.
|
|
Not Responsible for Recitals or Issuance of Securities.
|
The recitals contained herein and in the Securities, except the Trustees certificates of
authentication, may be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent will not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
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Section 9.04.
|
|
May Hold Securities.
|
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar, or any other
agent of the Company, in its individual or any other capacity, may
46
become the owner or pledgee of Securities and, subject to Sections 9.07 and 9.12, may
otherwise deal with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar, or such other agent.
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Section 9.05.
|
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Money Held in Trust.
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Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required herein or by law. The Trustee will be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the Company.
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Section 9.06.
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Compensation and Reimbursement.
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The Company will:
(a) pay to the Trustee from time to time such compensation for all services rendered by it
hereunder as the parties shall agree from time to time (which compensation will not be limited to
any provision of law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements, and advances incurred or made by the Trustee in accordance
with provision of this Indenture (including the reasonable compensation and the expenses and
disbursements of agents and counsel), except any such expense, disbursement, or advance as may be
attributable to its negligence or bad faith; and
(c) indemnify each of the Trustee and any predecessor Trustee for, and hold the Trustee
harmless against, any and all loss, liability, claim, or expense incurred without negligence or bad
faith on its part arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of its powers or duties
hereunder.
When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 8.01(a)(vii) or Section 8.01(a)(viii), the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for such services are intended to
constitute expenses of administration under any applicable federal or state bankruptcy, insolvency
or other similar law.
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Section 9.07.
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Disqualification; Conflicting Interests.
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If the Trustee has or acquires a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee will either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
47
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Section 9.08.
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Corporate Trustee Required; Eligibility.
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There will at all times be one or more Trustees hereunder with respect to the Securities of
each series, at least one of which will be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least $100 million and
its Corporate Trust Office or principal office in New York City, or any other major city in the
United States that is acceptable to the Company. If such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of a supervising or examining state or
federal authority, then for the purposes of this Section 9.08, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 9.08, it will resign immediately in the manner and
with the effect hereinafter specified in this Article IX.
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Section 9.09.
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Resignation and Removal; Appointment of Successor.
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(a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article IX will become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 9.10.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 9.10 shall not have been delivered to the Trustee within 30 calendar
days after the giving of such notice of resignation, the resigning Trustee may at the reasonable
expense of the Company petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If, at any time, (i) the Trustee fails to comply with Section 9.07 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least
six months, (ii) the Trustee ceases to be eligible under Section 9.08 and fails to resign after
written request therefor by the Company or by any such Holder, or (iii) the Trustee becomes
incapable of acting or is adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property is appointed or any public officer takes charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation, or liquidation, then, in any
such case, (A) the Company by a Board Resolution may remove the Trustee with respect to all
Securities or (B) subject to Section 8.07, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee resigns, is removed, or becomes incapable of acting, or if a vacancy occurs
in the office of Trustee for any cause, with respect to the Securities of one or
48
more series, the Company by a Board Resolution will promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more or all of such
series and that at any time there will be only one Trustee with respect to the Securities of any
particular series) and will comply with the applicable requirements of Section 9.10. If, within
one year after such resignation, removal, or incapability or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series is appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed will, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of Section 9.10,
become the successor Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 9.10, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of himself and all
others similarly situated, at the reasonable expense of the Company, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of
such series.
(f) The Company will give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series to all Holders of Securities of such series in the manner provided in
Section 14.03. Each notice will include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
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Section 9.10.
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Acceptance of Appointment by Successor.
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(a) In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed will execute, acknowledge, and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee will become effective and such successor Trustee,
without any further act, deed, or conveyance, will become vested with all the rights, powers,
trusts, and duties of the retiring Trustee, but, on the request of the Company or the successor
Trustee, such retiring Trustee will, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers, and duties of the retiring Trustee
and will duly assign, transfer, and deliver to such Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities
of one or more (but not all) series, the Company, the retiring Trustee, and each successor Trustee
with respect to the Securities of one or more series will execute and deliver an indenture
supplemental hereto wherein such successor Trustee will accept such appointment and which:
(i) will contain such provisions as may be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
49
trusts, and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates;
(ii) if the retiring Trustee is not retiring with respect to all Securities, will
contain such provisions as may be deemed necessary or desirable to confirm that all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring will continue to be
vested in the retiring Trustee; and
(iii) will add to or change any of the provisions of this Indenture as may be necessary
to provide for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental indenture will
constitute such Trustees co-trustees of the same trust and that each such Trustee will be
trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustees and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee will become
effective to the extent provided therein and each such successor Trustee, without any
further act, deed, or conveyance, will become vested with all the rights, powers, trusts,
and duties of the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; but on request of the Company or
any successor Trustee, such retiring Trustee will duly assign, transfer, and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company will execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
applicable rights, powers, and trusts referred to in the preceding paragraphs of this Section 9.10.
(d) No successor Trustee will accept its appointment unless at the time of such acceptance
such successor Trustee is qualified and eligible under this Article IX.
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Section 9.11.
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Merger, Conversion, Consolidation, or Succession to Business.
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Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion, or consolidation to which
the Trustee may be a party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee (including the administration of the trust created by this Indenture), will be
the successor of the Trustee hereunder,
provided
such corporation is otherwise qualified and eligible under this Article IX, without the execution
or filing of any paper or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion, or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
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Section 9.12.
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Preferential Collection of Claims Against Company.
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If and when the Trustee is or becomes a creditor of the Company (or any other obligor upon the
Securities), the Trustee will be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
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Section 9.13.
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Appointment of Authenticating Agent.
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(a) The Trustee may appoint an Authenticating Agent or Agents with respect to one or more
series of Securities which will be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue and upon exchange, registration of transfer,
or partial redemption thereof or pursuant to Section 2.07, and Securities so authenticated will be
entitled to the benefits of this Indenture and will be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustees certificate of
authentication, such reference will be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any state thereof, or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50
million and subject to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes of this Section
9.13, the combined capital and surplus of such Authenticating Agent will be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of
this Section 9.13, such Authenticating Agent will resign immediately in the manner and with the
effect specified in this Section 9.13.
(b) Any corporation into which an Authenticating Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger, conversion, or
consolidation to which such Authenticating Agent may be a party, or any corporation succeeding to
the corporate agency or corporate trust business of an Authenticating Agent, will continue to be an
Authenticating Agent,
provided
such corporation is otherwise eligible under this Section
9.13, without the execution or filing of any paper or any further act on the part of the Trustee or
the Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving written notice thereof to the
Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the provisions this Section
9.13, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the
Company and will mail written notice of such appointment by first-class mail, postage prepaid, to
all Holders of Securities of the series with respect to which such Authenticating Agent will serve,
as their names and addresses appear in the Security Register.
51
Any successor Authenticating Agent upon acceptance of its appointment hereunder will become
vested with all the rights, powers, and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent will be appointed
unless eligible under the provisions of this Section 9.13.
(d) The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 9.13.
(e) If an appointment with respect to one or more series of Securities is made pursuant to
this Section 9.13, the Securities of such series may have endorsed thereon, in addition to the
Trustees certificate of authentication, an alternative form of certificate of authentication in
the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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U.S. Bank National Association,
as Trustee
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Dated:
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By:
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As Authenticating Agent
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By:
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Authorized Signatory
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Section 9.14.
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Trustees Application for Instruction from the Company.
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Any application by the Trustee for written instructions from the Company may, at the option of
the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under
this Indenture and the date on and/or after which such action shall be taken or such omission shall
be effective. In the case of any proposed action or omission expressly authorized by this
Indenture, the Trustee shall not be liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after the date any officer of
the Company actually receives such application by telecopy, e-mail, or otherwise (provided that
such receipt shall have been confirmed by the Trustee), unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any such action (or the effective
date in the case of an omission), the Trustee shall have received written instructions in response
to such application specifying the action to be taken or omitted. In the case of any proposed
action or omission that is not expressly authorized by this Indenture, the Trustee shall not take
or refrain from taking any action unless prior to taking or refraining from taking any such action,
the Trustee shall have received written instructions in response to such application specifying the
action to be taken or omitted.
52
ARTICLE X. SUPPLEMENTAL INDENTURES AND CERTAIN ACTIONS.
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Section 10.01.
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Purposes for Which Supplemental Indentures May Be Entered Into Without Consent of
Holders.
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Without the consent of or notice to any Holders, the Company, when authorized by a Board
Resolution, the Guarantor, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company or the Guarantor and
the assumption by any such successor of the covenants of the Company or the Guarantor herein
and in the Securities, all to the extent otherwise permitted hereunder;
(b) 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;
(c) to add any additional Events of Default;
(d) to add to or change any of the provisions of this Indenture to such extent as may
be necessary to permit or facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form;
(e) to add to, change, or eliminate any of the provisions of this Indenture in respect
of one or more series of Securities,
provided
that any such addition, change, or
elimination (i) will neither (A) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such provision nor
(B) modify the rights of the Holder of any such Security with respect to such provision or
(ii) will become effective only when there is no such Security Outstanding;
(f) to establish the terms or form of Securities and the Guarantee of any series as
permitted by Sections 2.01 and 2.02;
(g) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as may be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 9.10; or
(h) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Indenture,
53
provided
that such action pursuant to this clause (h) will not adversely affect
the interests of the Holders of Securities of any series in any material respect.
Section 10.02. Modification of Indenture with Consent of Holders of at Least a Majority in
Principal Amount of Outstanding Securities.
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(a) With the consent of the Holders of a majority in principal amount of the Outstanding
Securities of each series affected by such supplemental indenture, by Act of said Holders delivered
to the Company, the Guarantor and the Trustee, the Company, when authorized by a Board Resolution,
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 will, without the consent of the Holder of
each Outstanding Security affected thereby:
(i) change the Stated Maturity of the principal of, or any installment of principal of
or interest on, any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 8.01(b), or change
any Place of Payment where, or the coin or currency in which, any Security or any premium or
interest thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date);
(ii) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of the Holders of which is required for any such supplemental indenture,
or the consent of the Holders of which is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or
(iii) modify any of the provisions of this Section 10.02, Section 8.01(d) or Section
6.06, except to increase the percentage in principal amount of Holders required under any
such Section or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding Security affected
thereby,
provided
,
however
, that this clause (iii) will not be deemed to
require the consent of any Holder with respect to changes in the references to the Trustee
and concomitant changes in this Section 10.02 and Section 6.06, or the deletion of this
proviso, in accordance with the requirements of Sections 9.10 and 10.01(g).
(b) A supplemental indenture which changes or eliminates any covenant or other provision of
this Indenture which has expressly been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, will be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
54
(c) It will not be necessary for any Act of Holders under this Section 10.02 to approve the
particular form of any proposed supplemental indenture, but it will be sufficient if such Act
approves the substance thereof.
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Section 10.03.
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Execution of Supplemental Indentures.
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In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article X or the modifications thereby of the trusts created by this Indenture,
the Trustee will be entitled to receive, and (subject to Section 9.01) will be fully protected in
relying upon, an Officers Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but will not
be obligated to, enter into any such supplemental indenture which affects the Trustees own rights,
duties, or immunities under this Indenture or otherwise.
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Section 10.04.
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Effect of Supplemental Indentures.
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Upon the execution of any supplemental indenture under this Article X, this Indenture will be
modified in accordance therewith, and such supplemental indenture will form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder will be bound thereby.
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Section 10.05.
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Conformity with Trust Indenture Act.
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Every supplemental indenture executed pursuant to this Article X will conform to the
requirements of the Trust Indenture Act.
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Section 10.06.
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Reference in Securities to Supplemental Indentures.
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Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article X may, and will if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities
of such series.
ARTICLE XI. CONSOLIDATION, MERGER, SALE, OR TRANSFER.
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Section 11.01.
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Consolidations and Mergers of Company and Sales Permitted Only on Certain Terms.
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(a) The Company shall not consolidate with or merge with or into any other Person, or transfer
(by lease, assignment, sale, or otherwise) all or substantially all of its properties and assets to
another Person unless:
(i) either (A) the Company shall be the continuing or surviving Person in such a
consolidation or merger or (B) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or to which all or
55
substantially all of the properties and assets of the Company are transferred (the
Company or such other Person being referred to as the Surviving Person) shall be a
corporation, partnership, limited liability company, business trust, trust or other legal
entity organized and validly existing under the laws of the United States, any State
thereof, or the District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, all of the obligations of the Company under the Securities and the
Indenture;
(ii) immediately after the transaction and the incurrence or anticipated incurrence of
any Indebtedness to be incurred in connection therewith, no Default will exist; and
(iii) an Officers Certificate has been delivered to the Trustee to the effect that the
conditions set forth in the preceding clauses (i) and (ii) have been satisfied and an
Opinion of Counsel (from a counsel who shall not be an employee of the Company) has been
delivered to the Trustee to the effect that the conditions set forth in the preceding clause
(i) have been satisfied.
(b) The Surviving Person will succeed to and be substituted for the Company with the same
effect as if it had been named herein as a party hereto, and thereafter the predecessor corporation
will be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE XII. GUARANTEES
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Section 12.01.
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Guarantees.
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(a) The Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor
and not merely as surety, to each Holder of the Securities and the Trustee the full and punctual
payment when due, whether at maturity, by acceleration, by redemption, by repurchase, or otherwise,
of the principal of, premium, if any, and interest on the Securities (the Obligations). The
Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or
renewed, in whole or in part, without notice or further assent from it, and that it will remain
bound under this Article XII notwithstanding any extension or renewal of any Obligation.
(b) The Guarantor waives presentation to, demand of payment from and protest to the Company of
any of the Obligations and also waives notice of protest for nonpayment. The Guarantor waives
notice of any default under the Securities or the Obligations. The obligations of the Guarantor
hereunder shall not be affected by:
(i) the failure of any Holder to assert any claim or demand or to enforce any right or
remedy against the Company or any other person under this Indenture, the Securities or any
other agreement or otherwise;
(ii) any extension or renewal of any thereof;
56
(iii) any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Securities or any other agreement;
(iv) the release of any security held by any Holder or the Trustee for the Obligations
or any of them;
(v) the failure of any Holder to exercise any right or remedy against any other
Guarantor; or
(vi) any change in the ownership of the Company.
(c) The Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment
when due (and not a Guarantee of collection) and waives any right to require that any resort be had
by any Holder to any security held for payment of the Obligations.
(d) The obligations of the Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than payment of the Obligations in
full), including any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without
limiting the generality of the foregoing, the obligations of the Guarantor herein shall not be
discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or
demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any
waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in
the performance of the Obligations, or by any other act or thing or omission or delay to do any
other act or thing which may or might in any manner or to any extent vary the risk of the Guarantor
or would otherwise operate as a discharge of the Guarantor as a matter of law or equity.
(e) The Guarantor further agrees that its Guarantee herein shall continue to be effective or
be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or
interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon
the bankruptcy or reorganization of the Company or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder
has at law or in equity against the Guarantor by virtue hereof, upon the failure of the Company to
pay any of the Obligations when and as the same shall become due, whether at maturity, by
acceleration, by redemption, by repurchase or otherwise, the Guarantor hereby promises to and will,
upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing
and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent
not prohibited by law).
(g) The Guarantor further agrees that, as between the Guarantor, on the one hand, and the
Holders, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be
accelerated as provided in this Indenture for the purposes of its Guarantee herein, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration
57
of such Obligations, such Obligations (whether or not due and payable) shall forthwith become
due and payable by the Guarantor for the purposes of this Guarantee.
(h) the Guarantor also agrees to pay any and all reasonable costs and expenses (including
reasonable attorneys fees) incurred by the Trustee or the Holders in enforcing any rights under
this Section.
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Section 12.02.
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Limitation on Liability; Termination, Release and Discharge.
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(a) The obligations of the Guarantor hereunder will be limited to those set forth in this
Article XII and to the maximum amount that will, after giving effect to all other contingent and
fixed liabilities of the Guarantor, result in the obligations of the Guarantor under its Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under federal or state law.
(b) The Guarantor may consolidate with or merge into or sell its assets to the Company without
limitation. The Guarantor may consolidate with or merge into or sell its assets to a Person other
than the Company (whether or not an Affiliate of the Guarantor), provided, that upon any such
consolidation, merger or sale to which the Guarantor is a party, other than transactions in which
the Guarantor is the surviving Person, the Obligations shall be expressly assumed by supplemental
indenture executed and delivered to the Trustee, by the Person formed by such consolidation, or
into which the Guarantor shall have been merged, or which shall have acquired such property and the
Guarantor will be deemed released from all its obligations under the Indenture and its Guarantee
and such Guarantee will terminate.
(c) Upon Defeasance in accordance with Article V hereof or satisfaction and discharge of this
Indenture in accordance with Article XIII hereof, the Guarantor will be released and relieved of
any obligations under its Guarantee and such Guarantee will terminate.
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Section 12.03.
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No Subrogation.
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Notwithstanding any payment or payments made by the Guarantor hereunder, the Guarantor shall
not be entitled to be subrogated to any of the rights of the Trustee or any Holder against the
Company or any collateral security or guarantee or right of offset held by the Trustee or any
Holder for the payment of the Obligations, nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from the Company in respect of payments made by the Guarantor
hereunder, until all amounts owing to the Trustee and the Holders by the Company on account of the
Obligations are paid in full. If any amount shall be paid to the Guarantor on account of such
subrogation rights at any time when all of the Obligations shall not have been paid in full, such
amount shall be held by the Guarantor in trust for the Trustee and the Holders, segregated from
other funds of the Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned over to
the Trustee in the exact form received by the Guarantor (duly indorsed by the Guarantor to the
Trustee, if required), to be applied against the Obligations.
58
ARTICLE XIII. SATISFACTION AND DISCHARGE OF INDENTURE.
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Section 13.01.
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Satisfaction and Discharge of Indenture.
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This Indenture will upon a Company Request cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense the Company, will execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:
(a) either:
(i) all Securities theretofore authenticated and delivered (other than (A) Securities
which have been destroyed, lost, or stolen and which have been replaced or paid as provided
in Section 2.07 and (B) Securities for the payment of which money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 6.03) have been delivered
to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for cancellation (A)
have become due and payable, (B) will become due and payable at their Stated Maturity within
one year, or (C) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company, and the Company or the Guarantor, in the case of
clause (A), (B), or (C) above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for cancellation,
for principal and any premium and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(b) the Company or the Guarantor has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an 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 satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 9.06, the obligations of the Trustee to any Authenticating
Agent under Section 9.13, and, if money shall have been deposited with the Trustee pursuant to
subclause (ii) of clause (a) of this Section 13.01, the obligations of the Trustee under Sections
6.03(e) and 13.02, will survive.
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Section 13.02.
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Application of Trust Money.
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Subject to the provisions of Section 6.03(e), all money deposited with the Trustee pursuant to
Section 13.01 will be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
59
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and interest for the
payment of which such money has been deposited with the Trustee; and such money shall be segregated
from other funds to the extent required by law.
ARTICLE XIV. MISCELLANEOUS PROVISIONS.
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Section 14.01.
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Successors and Assigns of Company Bound by Indenture.
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All the covenants, stipulations, promises, and agreements in this Indenture contained by or on
behalf of the Company will bind its successors and assigns, whether so expressed or not.
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Section 14.02.
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Service of Required Notice to Trustee and Company.
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Any request, demand, authorization, direction, notice, consent, waiver, Act of Holders, or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with:
(a) the Trustee by any Holder or by the Company will be sufficient for every purpose hereunder
if made, given, furnished, or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department; or
(b) the Company by the Trustee or by any Holder will be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid,
to the Company addressed to it at 7 West Seventh Street, Cincinnati, Ohio 45202 (marked for the
attention of both the Chief Financial Officer and the General Counsel) or at any other address
previously furnished in writing to the Trustee by the Company.
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Section 14.03.
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Service of Required Notice to Holders; Waiver.
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Where this Indenture provides for notice to Holders of any event, such notice will be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any), and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder will affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver will be
the equivalent of such notice. Waivers of notice by Holders will be filed with the Trustee, but
such filing will not be a condition precedent to the validity of any action taken in reliance upon
such waiver. In case by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such notification as may be made
with the approval of the Trustee will constitute a sufficient notification for every purpose
hereunder.
60
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Section 14.04.
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Indenture and Securities to be Construed in Accordance with the Laws of the State of
New York.
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This Indenture and the Securities will be deemed to be a contract made under the laws of the
State of New York, and for all purposes will be construed in accordance with the laws of said State
without giving effect to principles of conflict of laws of such State.
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Section 14.05.
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Compliance Certificates and Opinions.
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Upon any application or request by the Company to the Trustee to take any action under any of
the provisions of this Indenture, the Company will furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate or opinion will
be given in the form of an Officers Certificate, if to be given by an officer of the Company, an
Opinion of Counsel, if to be given by counsel, or a certificate or opinion of an accountant, if to
be given by an accountant or accounting firm, and will comply with the requirements of the Trust
Indenture Act and any other requirements set forth in this Indenture.
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Section 14.06.
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Form of Documents Delivered to Trustee.
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In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents. Where any Person is required to make, give, or execute
two or more applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
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Section 14.07.
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Payments Due on Non-Business Days.
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In any case where any Interest Payment Date, Redemption Date, or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a provision of the Securities of any
series which specifically states that such provision will apply in lieu of this Section 14.07))
payment of interest or principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity,
provided
that interest will accrue for the period from and after such Interest
Payment Date, Redemption Date, or Stated Maturity, as the case may be.
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Section 14.08.
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Provisions Required by Trust Indenture Act to Control.
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If any provision of this Indenture limits, qualifies, or conflicts with the duties imposed on
any Person by Sections 310 through 317, inclusive, of the Trust Indenture Act (including provisions
automatically deemed included in this Indenture pursuant to the Trust Indenture Act unless this
Indenture provides that such provisions are excluded), which are
61
deemed to be a part of and govern this Indenture, whether or not contained herein, then such
imposed duties will control.
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Section 14.09.
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Invalidity of Particular Provisions.
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In case any one or more of the provisions contained in this Indenture or in the Securities is
for any reason held to be invalid, illegal, or unenforceable in any respect, such validity,
illegality, or enforceability will not affect any other provision of this Indenture or of the
Securities, but this Indenture and such Securities will be construed as if such invalid or illegal
or unenforceable provision had never been contained herein or therein.
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Section 14.10.
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Indenture May be Executed In Counterparts.
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This instrument may be executed in any number of counterparts, each of which will be an
original, but such counterparts will together constitute but one and the same instrument.
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Section 14.11.
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Acts of Holders; Record Dates.
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(a) Any request, demand, authorization, direction, notice, consent, waiver, or other action
provided or permitted by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments (including instruments in electronic, digital or other
machine-readable form) of substantially similar tenor signed (including signatures in electronic,
digital or other machine-readable form) by such Holders in person or by agent duly appointed in
writing (including writings in electronic, digital or other machine-readable form); and, except as
herein otherwise expressly provided, such action will become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the Act of the Holders signing such instrument or
instruments. Proof of signature of any such instrument or of a writing appointing any such agent
will be sufficient for any purpose of this Indenture and (subject to Section 9.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this Section 14.11.
(b) The fact and date of the signing by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such signing 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 signing thereof. Where such signing is
by a signer acting in a capacity other than his individual capacity, such certificate or affidavit
will also constitute sufficient proof of his authority. The fact and date of the signing of any
such instrument or writing, or the authority of the Person signing the same, may also be proved in
any other manner which the Trustee deems sufficient.
(c) The ownership of Securities will be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver, or other Act of
the Holder of any Security will bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in exchange
62
thereof or in lieu thereof in respect of anything done, omitted, or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may, in the circumstances permitted by the Trust Indenture Act, set any day as
the record date for the purpose of determining the Holders of Outstanding Securities of any series
entitled to give or take any request, demand, authorization, direction, notice, consent, waiver, or
other action provided or permitted by this Indenture to be given or taken by Holders of Securities
of such series. With regard to any record date set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date (or their duly appointed agents),
and only such Persons, will be entitled to give or take the relevant action, whether or not such
Holders remain Holders after such record date. With regard to any action that may be given or
taken hereunder only by Holders of a requisite principal amount of Outstanding Securities of any
series (or their duly appointed agents) and for which a record date is set pursuant to this
paragraph, the Company may, at its option, set an expiration date after which no such action
purported to be given or taken by any Holder will be effective hereunder unless given or taken on
or prior to such expiration date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents). On or prior to any
expiration date set pursuant to this paragraph, the Company may, on one or more occasions at its
option, extend such date to any later date. Nothing in this paragraph will prevent any Holder (or
any duly appointed agent thereof) from giving or taking, after any such expiration date, any action
identical to, or, at any time, contrary to or different from, the action or purported action to
which such expiration date relates, in which event the Company may set a record date in respect
thereof pursuant to this paragraph. Nothing in this Section 14.11(e) will be construed to render
ineffective any action taken at any time by the Holders (or their duly appointed agents) of the
requisite principal amount of Outstanding Securities of the relevant series on the date such action
is so taken. Notwithstanding the foregoing or the Trust Indenture Act, the Company will not set a
record date for, and the provisions of this Section 14.11(e) will not apply with respect to, any
notice, declaration, or direction referred to in the next paragraph.
(f) Upon receipt by the Trustee from any Holder of Securities of a particular series of (a)
any notice of default or breach referred to in Section 8.01(a)(iv) or 8.01(a)(v) with respect to
Securities of such series, if such default or breach has occurred and is continuing and the Trustee
shall not have given such notice to the Company, (b) any declaration of acceleration referred to in
Section 8.01(b), if an Event of Default with respect to Securities of such series has occurred and
is continuing and the Trustee shall not have given such a declaration to the Company, or (c) any
direction referred to in Section 8.06 with respect to Securities of such series, if the Trustee
shall not have taken the action specified in such direction, then a record date will automatically
and without any action by the Company or the Trustee be set for determining the Holders of
Outstanding Securities of such series entitled to join in such notice, declaration, or direction,
which record date will be the close of business on the tenth calendar day following the day on
which the Trustee receives such notice, declaration, or direction. Promptly after such receipt by
the Trustee, and in any case not later than the fifth calendar day thereafter, the Trustee will
notify the Company and the Holders of Outstanding Securities of such series of any such record date
so fixed. The Holders of Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, will be entitled to join in such notice,
63
declaration, or direction, whether or not such Holders remain Holders after such record date;
provided
that, unless such notice, declaration, or direction shall have become effective by
virtue of Holders of the requisite principal amount of Outstanding Securities of such series on
such record date (or their duly appointed agents) having joined therein on or prior to the 90th
calendar day after such record date, such notice, declaration, or direction will automatically and
without any action by any Person be cancelled and of no further effect. Nothing in this Section
14.11(f) will be construed to prevent a Holder (or a duly appointed agent thereof) from giving,
before or after the expiration of such 90-day period, a notice, declaration, or direction contrary
to or different from, or, after the expiration of such period, identical to, the notice,
declaration, or direction to which such record date relates, in which event a new record date in
respect thereof will be set pursuant to this Section 14.11(f). Nothing in this Section 14.11(f)
will be construed to render ineffective any notice, declaration, or direction of the type referred
to in this Section 14.11(f) given at any time to the Trustee and the Company by Holders (or their
duly appointed agents) of the requisite principal amount of Outstanding Securities of the relevant
series on the date such notice, declaration, or direction is so given.
(g) Without limiting the foregoing, a Holder entitled hereunder to give or take any action
hereunder with regard to any particular Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such principal amount.
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Section 14.12.
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Effect of Headings and Table of Contents.
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The Article and Section headings herein and the Table of Contents are for convenience only and
will not affect the construction hereof.
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Section 14.13.
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Benefits of Indenture.
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Nothing in this Indenture or in the Securities, express or implied, will give to any Person,
other than the parties hereto and their successors hereunder and the Holders any benefit or any
legal or equitable right, remedy, or claim under this Indenture.
64
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.
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[Seal]
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FEDERATED RETAIL HOLDINGS, INC.,
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as Issuer
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By:
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/s/ Karen M. Hoguet
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Name:
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Karen M. Hoguet
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Title:
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Vice President and
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Chief Financial Officer
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Attest:
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/s/ Susan P. Storer
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Name:
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Susan P. Storer
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Title:
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OVP-Assistant Treasurer
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[Seal]
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FEDERATED DEPARTMENT STORES, INC.,
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as Guarantor
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By:
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/s/ Karen M. Hoguet
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Name:
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Karen M. Hoguet
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Title:
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Executive Vice President and
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Chief Financial Officer
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Attest:
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/s/ Susan P. Storer
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Name:
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Susan P. Storer
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Title:
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OVP-Assistant Treasurer
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U.S. BANK NATIONAL ASSOCIATION,
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as Trustee
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By:
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/s/ Earl W. Dennison Jr.
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Name:
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Earl W. Dennison Jr.
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Title:
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Vice President
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Attest:
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/s/ Andrew M. Sinasky
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Name:
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Andrew M. Sinasky
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Title:
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Assistant Vice President
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65
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STATE OF OHIO
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§
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§
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COUNTY OF HAMILTON
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§
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On
this 2nd day of November, 2006, before me personally came Karen M. Hoguet, to me known,
who, being by me duly sworn, did depose and say that she is a Vice President and Chief Financial
Officer of FEDERATED RETAIL HOLDINGS, INC., one of the entities described in and which executed the
above instrument; that she knows the seal of said entity; that the seal or a facsimile thereof
affixed to said instrument in such seal; that it was so affixed by authority of the Board of
Directors of said entity, and that she signed 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.
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/s/ Dianne M. Webber
Notary Public, State of Ohio
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[Seal]
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66
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STATE OF OHIO
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§
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§
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COUNTY OF HAMILTON
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§
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On
this 2nd day of November, 2006, before me personally came Karen M.
Hoguet, to me known, who, being by me duly sworn, did depose and say that she is an Executive Vice President and Chief Financial Officer of FEDERATED DEPARTMENT STORES, INC., one of the entities described in and which
executed the above instrument; that she knows the seal of said entity; that the seal or a facsimile
thereof affixed to said instrument in such seal; that it was so affixed by authority of the Board
of Directors of said entity, and that she signed 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.
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/s/ Dianne M. Webber
Notary Public, State of Ohio
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[Seal]
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67
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COMMONWEALTH OF MASSACHUSETTS
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§
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§
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COUNTY OF SUFFOLK
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§
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On
this 2nd day of November, 2006, before me personally came Earl W. Dennison Jr., to me
known, who, being by me duly sworn, did depose and say that he/she is a Vice President of U.S. BANK
NATIONAL ASSOCIATION, one of the entities described in and which executed the above instrument,
that he/she signed his/her name thereto by authority of the Board of Directors of said entity.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year
in this certificate first above written.
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/s/ Jordan D. Musser
Notary Public, Commonwealth of
Massachusetts
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[Seal]
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68