-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Kgrwo8EQ8cg4uLi7QuidJyIE/lE121j/o5RGup89A/Fbi0TjPMhmkOzMMNYgodgg yqRAKitWFEKu2kgnSbb4ow== 0000931763-98-002491.txt : 19980925 0000931763-98-002491.hdr.sgml : 19980925 ACCESSION NUMBER: 0000931763-98-002491 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 4 REFERENCES 429: 333-55805 REFERENCES 429: 333-61881 FILED AS OF DATE: 19980924 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAKS INC CENTRAL INDEX KEY: 0000812900 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DEPARTMENT STORES [5311] IRS NUMBER: 620331040 STATE OF INCORPORATION: TN FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175 FILM NUMBER: 98714153 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: CITY: ALCOA STATE: TN ZIP: 37701 FORMER COMPANY: FORMER CONFORMED NAME: PROFFITTS INC DATE OF NAME CHANGE: 19920703 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HERBERGERS G R INC CENTRAL INDEX KEY: 0000046967 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-01 FILM NUMBER: 98714154 BUSINESS ADDRESS: STREET 1: - STREET 2: 600 MALL GERMIN CITY: STA CLOUD STATE: MN ZIP: 56301 BUSINESS PHONE: 0000000000 MAIL ADDRESS: STREET 1: 600 MALL GERMAIN STREET 2: 600 MALL GERMAIN CITY: ST CLOUD STATE: MN ZIP: 56301 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PARISIAN INC CENTRAL INDEX KEY: 0000729979 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DEPARTMENT STORES [5311] IRS NUMBER: 630680839 STATE OF INCORPORATION: AL FISCAL YEAR END: 0130 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-02 FILM NUMBER: 98714155 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PKWY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059404000 MAIL ADDRESS: STREET 2: 750 LAKESHORE PKWY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MCRAES INC CENTRAL INDEX KEY: 0000773086 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 640202140 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-03 FILM NUMBER: 98714156 BUSINESS ADDRESS: STREET 1: - STREET 2: 3455 HIGHWAY 80 WEST CITY: JACKSON STATE: MI ZIP: 34209 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CARSON PIRIE SCOTT & CO /IL/ CENTRAL INDEX KEY: 0000910723 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DEPARTMENT STORES [5311] IRS NUMBER: 370175980 STATE OF INCORPORATION: IL FISCAL YEAR END: 0203 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-04 FILM NUMBER: 98714157 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PKWY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059404000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PKWY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FORMER COMPANY: FORMER CONFORMED NAME: BERGNER P A & CO DATE OF NAME CHANGE: 19930818 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAKS HOLDINGS INC CENTRAL INDEX KEY: 0001010744 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DEPARTMENT STORES [5311] IRS NUMBER: 511685667 STATE OF INCORPORATION: DE FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-05 FILM NUMBER: 98714158 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PKWY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059404000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PKWY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MCRAES OF ALABAMA INC CENTRAL INDEX KEY: 0001041022 STANDARD INDUSTRIAL CLASSIFICATION: [] FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-06 FILM NUMBER: 98714159 BUSINESS ADDRESS: STREET 1: - STREET 2: 600 MALL GERMAIN CITY: ST CLOUD STATE: MN ZIP: 56301 MAIL ADDRESS: STREET 1: 600 MALL GERMAIN STREET 2: 600 MALL GERMAIN CITY: ST CLOUD STATE: MN ZIP: 56301 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MCRAES STORES PARTNERSHIP CENTRAL INDEX KEY: 0001041023 STANDARD INDUSTRIAL CLASSIFICATION: [] FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-07 FILM NUMBER: 98714160 BUSINESS ADDRESS: STREET 1: - STREET 2: 600 MALL GERMAIN CITY: ST CLOUD STATE: MN ZIP: 56301 MAIL ADDRESS: STREET 1: 600 MALL GERMAIN STREET 2: 600 MALL GERMAIN CITY: ST CLOUD STATE: MN ZIP: 56301 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PROFFITTS CAPITAL TRUST I CENTRAL INDEX KEY: 0001063079 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DEPARTMENT STORES [5311] STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-08 FILM NUMBER: 98714161 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059404000 MAIL ADDRESS: CITY: ALCOA STATE: TN ZIP: 37701 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PROFFITTS CAPITAL TRUST II CENTRAL INDEX KEY: 0001068106 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-09 FILM NUMBER: 98714162 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059404000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PROFFITTS CAPITAL TRUST III CENTRAL INDEX KEY: 0001068107 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-10 FILM NUMBER: 98714163 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059404000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PROFFITTS CAPITAL TRUST IV CENTRAL INDEX KEY: 0001068108 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-11 FILM NUMBER: 98714164 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059404000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PROFFITTS CAPITAL TRUST V CENTRAL INDEX KEY: 0001068109 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-12 FILM NUMBER: 98714165 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059404000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SFA REAL ESTATE CO CENTRAL INDEX KEY: 0001070814 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 133830063 STATE OF INCORPORATION: DE FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-13 FILM NUMBER: 98714166 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SFA FOLIO COLLECTIONS INC CENTRAL INDEX KEY: 0001070815 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 133830063 STATE OF INCORPORATION: DE FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-14 FILM NUMBER: 98714167 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SFA DATA PROCESSING INC CENTRAL INDEX KEY: 0001070816 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 133830063 STATE OF INCORPORATION: DE FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-15 FILM NUMBER: 98714168 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SFA SPECIALTY STORES INC CENTRAL INDEX KEY: 0001070817 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 133830063 STATE OF INCORPORATION: DE FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-16 FILM NUMBER: 98714169 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAKS FIFTH AVENUE STAMFORD INC CENTRAL INDEX KEY: 0001070819 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 060166413 STATE OF INCORPORATION: DE FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-17 FILM NUMBER: 98714170 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAKS FIFTH AVENUE LOUISIANA INC CENTRAL INDEX KEY: 0001070820 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 742274889 STATE OF INCORPORATION: DE FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-18 FILM NUMBER: 98714171 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAKS FIFTH AVENUE INC CENTRAL INDEX KEY: 0001070821 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 042226632 STATE OF INCORPORATION: MA FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-19 FILM NUMBER: 98714172 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAKS FIFTH AVENUE OF TEXAS INC CENTRAL INDEX KEY: 0001070822 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 132781671 STATE OF INCORPORATION: DE FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-20 FILM NUMBER: 98714173 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAKS FIFTH AVENUE OF OHIO INC CENTRAL INDEX KEY: 0001070823 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 621030755 STATE OF INCORPORATION: DE FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-21 FILM NUMBER: 98714174 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAKS FIFTH AVENUE OF MISSOURI INC CENTRAL INDEX KEY: 0001070825 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 430381410 STATE OF INCORPORATION: MO FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-22 FILM NUMBER: 98714175 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAKS FIFTH AVENUE DISTRIBUTION CO CENTRAL INDEX KEY: 0001070826 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-23 FILM NUMBER: 98714176 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAKS FIFTH AVENUE ATLANTA INC CENTRAL INDEX KEY: 0001070827 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 132610598 STATE OF INCORPORATION: GA FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-24 FILM NUMBER: 98714177 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAKS & CO CENTRAL INDEX KEY: 0001070828 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 131256625 STATE OF INCORPORATION: NY FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-25 FILM NUMBER: 98714178 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CPS HOLDING CO /DE CENTRAL INDEX KEY: 0001070829 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 363522023 STATE OF INCORPORATION: DE FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-26 FILM NUMBER: 98714179 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CPS DEPARTMENT STORES INC /DE CENTRAL INDEX KEY: 0001070831 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 363476621 STATE OF INCORPORATION: DE FISCAL YEAR END: 0201 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-64175-27 FILM NUMBER: 98714180 BUSINESS ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 BUSINESS PHONE: 2059414000 MAIL ADDRESS: STREET 1: 750 LAKESHORE PARKWAY CITY: BIRMINGHAM STATE: AL ZIP: 35211 S-3 1 PROFFITT'S FORM S-3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 24, 1998 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- SAKS INCORPORATED (Exact name of registrant as specified in its charters) TENNESSEE 62-0331040 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) PROFFITT'S CAPITAL TRUST I (Exact name of registrant as specified in its charters) DELAWARE APPLIED FOR (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4600 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) PROFFITT'S CAPITAL TRUST II (Exact name of registrant as specified in its charters) DELAWARE APPLIED FOR (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4600 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) PROFFITT'S CAPITAL TRUST III (Exact name of registrant as specified in its charters) DELAWARE APPLIED FOR (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4600 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) PROFFITT'S CAPITAL TRUST IV (Exact name of registrant as specified in its charters) DELAWARE APPLIED FOR (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4600 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) PROFFITT'S CAPITAL TRUST V (Exact name of registrant as specified in its charters) DELAWARE APPLIED FOR (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4600 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) CARSON PIRIE SCOTT & CO. (AS GUARANTOR) (Exact name of registrant as specified in its charters) ILLINOIS 37-0175980 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) CPS DEPARTMENT STORES, INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) DELAWARE 36-3476621 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) CPS HOLDING CO. (AS GUARANTOR) (Exact name of registrant as specified in its charters) DELAWARE 36-3522023 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) G.R. HERBERGER'S, INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) DELAWARE 41-0635374 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) MCRAE'S OF ALABAMA, INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) ALABAMA 63-0165960 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) MCRAE'S , INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) MISSISSIPPI 64-0202140 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) MCRAE'S STORES PARTNERSHIP (AS GUARANTOR) (Exact name of registrant as specified in its charters) MISSISSIPPI 72-1360263 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) PARISIAN, INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) ALABAMA 63-0680839 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) SAKS & COMPANY (AS GUARANTOR) (Exact name of registrant as specified in its charters) NEW YORK 13-1256625 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) SAKS FIFTH AVENUE, ATLANTA, INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) GEORGIA 13-2610598 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) SAKS FIFTH AVENUE DISTRIBUTION COMPANY (AS GUARANTOR) (Exact name of registrant as specified in its charters) DELAWARE 13-3909991 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) SAKS FIFTH AVENUE OF MISSOURI, INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) MISSOURI 43-0381410 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) SAKS FIFTH AVENUE OF OHIO, INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) DELAWARE 62-1030755 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) SAKS FIFTH AVENUE OF TEXAS, INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) DELAWARE 13-2781671 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) SAKS FIFTH AVENUE, INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) MASSACHUSETTS 04-2226632 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) SAKS FIFTH AVENUE - LOUISIANA, INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) DELAWARE 74-2274889 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) SAKS FIFTH AVENUE - STAMFORD, INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) CONNECTICUT 06-0166413 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) SAKS HOLDINGS, INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) DELAWARE 51-1685667 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) SAKS SPECIALTY STORES, INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) DELAWARE 61-1128087 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) S.F.A. DATA PROCESSING, INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) DELAWARE 61-1092143 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) SFA FOLIO COLLECTIONS, INC. (AS GUARANTOR) (Exact name of registrant as specified in its charters) NEW YORK 13-2733441 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) SFA REAL ESTATE COMPANY (AS GUARANTOR) (Exact name of registrant as specified in its charters) DELAWARE 13-3830063 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Address, including zip code, and telephone number, including area code, of the registrant's principal executive offices) ---------------- BRIAN J. MARTIN, ESQ. SAKS INCORPORATED 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (205) 940-4000 (Name, address, including zip code, and telephone number, including area code, of agent for service) ---------------- COPIES TO: MARK F. MCELREATH MARK C. KANALY ALSTON & BIRD LLP ONE ATLANTIC CENTER 1201 WEST PEACHTREE STREET ATLANTA, GEORGIA 30309 (404) 881-7000 ---------------- Approximate date of commencement of proposed sale to the public: FROM TIME TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE AS DETERMINED BY MARKET CONDITIONS AND OTHER FACTORS. If the only securities being registered on this Form are being offered pursuant to dividend or interest re-investment plans, please check the following box. [_] If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest re-investment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act Registration Statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act Registration Statement number of the earlier effective Registration Statement for the same offering. [_] If delivery of the Prospectus is expected to be made pursuant to Rule 434, please check the following box. [X] CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------- - -------------------------------------------------------------------------------
PROPOSED PROPOSED MAXIMIUM TITLE OF EACH CLASS OF MAXIMUM AGREGATE AMOUNT OF SECURITIES TO BE AMOUT TO BE OFFERING PRICE OFFERING REGISTRATION REGISTERED(1) REGISTERED(2)(6) PER UNIT(3)(4) PRICE(4)(6)(7) FEE - -------------------------------------------------------------------------------------------- Senior Debt Securities of Saks Incorporated (5)....... $2,500,000,000(11) 100% $2,500,000,000 $737,500(12) Subordinated Debt Securities of Saks Incorporated (5)....... Guarantees of the Debt Securities of Saks Incorporated (13)...... Preferred Stock, $1.00 par value, of Saks Incorporated (5)....... Depositary Shares of Saks Incorporated (5).. Common Stock, $.10 par value, of Saks Incorporated (5)....... Warrants of Saks Incor- porated (8)............ Stock Purchase Contracts of Saks Incorporated (9).................... Stock Purchase Units of Saks Incorporated (9).. Preferred Securities of Proffitt's Capital Trust I, Proffitt's Capital Trust II, Proffitt's Capital Trust III, Proffitt's Capital Trust IV and/or Proffitt's Capital Trust V (collectively, the "Proffitt's Trusts") (10).......... Guarantees of Preferred Securities of the Proffitt's Trusts (10).
- ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- - -------- (1) Such indeterminate number or principal amount of Senior Debt Securities, Subordinated Debt Securities, Preferred Stock, Depositary Shares, Common Stock, Warrants, Stock Purchase Contracts, and Stock Purchase Units of Saks Incorporated and such indeterminate number of Preferred Securities of the Proffitt's Trusts as may from time to time be issued at indeterminate prices. Subordinated Debt Securities may be issued and sold to the Proffitt's Trusts, in which event such Subordinated Debt Securities may later be distributed to the holders of Preferred Securities upon a dissolution of the applicable Proffitt's Trust and the distribution of the assets thereof. This Registration Statement also covers delayed delivery contracts that may be issued by the Registrant under which the party purchasing such contracts may be required to purchase Senior Debt Securities, Subordinated Debt Securities, Preferred Stock or Common Stock. Such contracts may be issued together with the specific Securities to which they relate. In addition, Securities registered hereunder may be sold either separately or as units comprised of more than one type of Security registered hereunder. (2) In United States dollars or the equivalent thereof in any other currency, currency unit or units, or composite currency or currencies. (3) Estimated solely for the purpose of computing the registration fee. (4) Exclusive of accrued interest and distributions, if any. (5) Also includes such indeterminate number of Senior Debt Securities, Subordinated Debt Securities and shares of Preferred Stock, Depositary Shares and Common Stock as may be issued upon conversion or exchange of any Senior Debt Securities, Subordinated Debt Securities, Preferred Stock or Depositary Shares that provide for conversion or exchange into other Securities or upon exercise of Warrants for such Securities. It further includes the rights to purchase one one-hundredth (1/100) of a share of Series C Junior Preferred Stock that are associated with each share of Common Stock. (6) Such amount represents the principal amount of any Senior Debt Securities or Subordinated Debt Securities issued at their principal amount, the issue price of any Senior Debt Securities or Subordinated Debt Securities issued at an original issue discount, the liquidation preference of any Preferred Stock or Depositary Shares, the amount computed pursuant to Rule 457(c) for any Common Stock, the issue price of any Warrants and the exercise price of any Securities issuable upon exercise of Warrants. (7) No separate consideration will be received for the Senior Debt Securities, Subordinated Debt Securities, Preferred Stock, Depositary Shares, Common Stock or Preferred Securities of the Proffitt's Trusts issuable upon conversion of or in exchange for Senior Debt Securities, Subordinated Debt Securities, Preferred Stock or Depositary Shares. (8) Warrants may be sold separately or with Senior Debt Securities, Subordinated Debt Securities, Preferred Stock, Depositary Shares or Common Stock. (9) Includes an indeterminable number of shares of Common Stock to be issuable by Saks Incorporated upon settlement of the Stock Purchase Contracts or Stock Purchase Units. (10) Includes the rights of holders of the Preferred Securities under the Guarantees of Preferred Securities and back-up undertakings, consisting of obligations by Saks Incorporated, as set forth in the Amended and Restated Declaration of Trust, the Subordinated Debt Securities Indenture and Supplemental Indentures thereto, in each case as further described in the Registration Statement. No separate consideration will be received for any Guarantees or any back-up undertakings. (11) Includes $1,000,000,000 of unsold securities previously registered under Registration Statement No. 333-55805 and $1,500,000,000 of unsold securities previously registered under Registration Statement No. 333- 61881. (12) Pursuant to Rule 429 under the Securities Act, the registration fee consists of $295,000 which has been previously paid in connection with Registration Statement No. 333-55805 and $442,500 which has been paid in connection with Registration Statement No. 333-61881. See Note (11). (13) The guarantees, if any, of the Debt Securities by one or more of the existing or future subsidiaries of Saks Incorporated. ---------------- PURSUANT TO SECURITIES AND EXCHANGE COMMISSION RULE 429 UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), THE PROSPECTUS INCLUDED IN THIS REGISTRATION STATEMENT ALSO RELATES TO UNSOLD SECURITIES IN THE AGGREGATE AMOUNT OF $2,500,000,000 THAT WERE PREVIOUSLY REGISTERED (I) BY SAKS INCORPORATED AND PROFFITT'S CAPITAL TRUST I UNDER REGISTRATION STATEMENT NO. 333-55805 ON FORM S-3 FILED ON JUNE 2, 1998 AND (II) BY SAKS INCORPORATED, PROFFITT'S CAPITAL TRUST I, PROFFITT'S CAPITAL TRUST II, PROFFITT'S CAPITAL TRUST III, PROFFITT'S CAPITAL IV AND PROFFITT'S CAPITAL TRUST V UNDER REGISTRATION STATEMENT NO. 333-61881 ON FORM S-3 FILED ON AUGUST 20, 1998. THIS REGISTRATION STATEMENT CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 2 TO REGISTRATION STATEMENT NO. 333-55805 AND POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 333-61881. SUCH POST-EFFECTIVE AMENDMENTS SHALL HEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(C) OF THE SECURITIES ACT CONCURRENTLY WITH THE EFFECTIVENESS OF THIS REGISTRATION STATEMENT. THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PROSPECTUS $2,500,000,000 SAKS INCORPORATED SENIOR DEBT SECURITIES, SUBORDINATED DEBT SECURITIES, GUARANTEES OF SENIOR OR SUBORDINATED DEBT SECURITIES PREFERRED STOCK, DEPOSITARY SHARES, COMMON STOCK, WARRANTS, STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS PROFFITT'S CAPITAL TRUST I PROFFITT'S CAPITAL TRUST II PROFFITT'S CAPITAL TRUST III PROFFITT'S CAPITAL TRUST IV PROFFITT'S CAPITAL TRUST V PREFERRED SECURITIES GUARANTEED ON A SUBORDINATED BASIS, AS DESCRIBED HEREIN, BY SAKS INCORPORATED Saks Incorporated (the "Company") may offer and sell from time to time the following securities: (i) its unsecured senior debt securities ("Senior Debt Securities") and unsecured subordinated debt securities ("Subordinated Debt Securities," and, together with the Senior Debt Securities, the "Debt Securities"), consisting of debentures, notes or other evidences of indebtedness, which may be guaranteed on a senior or subordinated basis by one or more subsidiaries of the Company; (ii) shares of its preferred stock, par value $1.00 per share (the "Preferred Stock"); (iii) depositary shares representing entitlement to all rights and preferences of a fraction of a share of Preferred Stock of a specific series ("Depositary Shares"), (iv) shares of its common stock, par value $.10 per share (the "Common Stock"); (v) warrants to purchase any of the foregoing Senior Debt Securities, Subordinated Debt Securities, Preferred Stock, Depositary Shares or Common Stock (the "Warrants"); (vi) stock purchase contracts ("Stock Purchase Contracts") to purchase Common Stock; or (vii) stock purchase units ("Stock Purchase Units"), each Stock Purchase Unit representing ownership of a Stock Purchase Contract and one of the following, which will secure the holder's obligation to purchase Common Stock under the Stock Purchase Contract: (x) Senior Debt Securities or Subordinated Debt Securities, (y) Preferred Securities (as defined below), or (z) debt obligations of third parties, including U.S. government or government agency securities. Such securities may be offered in one or more separate classes or series, in amounts, at prices, and on terms to be determined by market conditions at the time of sale and to be set forth in a supplement or supplements to this Prospectus (each, a "Prospectus Supplement"). Such securities may be sold for U.S. dollars or foreign- denominated currency or currency units, and amounts payable with respect to such securities may likewise be payable in U.S. dollars or foreign-denominated currency or currency units, in each case as the Company specifically designates. Proffitt's Capital Trust I, Proffitt's Capital Trust II, Proffitt's Capital Trust III, Proffitt's Capital Trust IV and Proffitt's Capital Trust V, (each a "Proffitt's Trust" and, collectively, the "Proffitt's Trusts"), are separate statutory business trusts created under the laws of the State of Delaware, each of which may offer and sell from time to time preferred securities, which may be designated as preferred securities or capital securities, representing undivided beneficial interests in the assets of the applicable Proffitt's Trust ("Preferred Securities"). (continued on following pages) ---------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is September 24, 1998. The payment of periodic cash distributions ("Distributions") with respect to Preferred Securities out of monies held by such Proffitt's Trust, and payments on liquidation, redemption or otherwise with respect to Preferred Securities, will be guaranteed by the Company to the extent described herein (each a "Trust Guarantee" and, collectively, the "Trust Guarantees"). Each Trust Guarantee (i) will rank junior and subordinate in right of payment to all other indebtedness of the Company, except indebtedness of the Company that by its terms is subordinate or pari passu to the Trust Guarantee, and (ii) will rank pari passu with most senior preferred or preference stock of the Company. Subordinated Debt Securities may be issued and sold from time to time by the Company in one or more series to the Proffitt's Trusts or a Trustee of any of the Proffitt's Trusts in connection with the investment of the proceeds from the offering of Preferred Securities and Common Securities (as defined herein) of the Proffitt's Trusts. Subordinated Debt Securities purchased by any of the Proffitt's Trusts may be subsequently distributed pro rata to holders of Preferred Securities and Common Securities in connection with the dissolution of the applicable Proffitt's Trust upon the occurrence of certain events as may be described in an accompanying Prospectus Supplement. See "Description of Preferred Securities," "Description of Trust Guarantees--Status of the Trust Guarantees." Specific terms of the particular securities in respect of which this Prospectus is being delivered (the "Offered Securities"), will be set forth in an accompanying Prospectus Supplement or Supplements, together with the terms of the offering of the Offered Securities. A Prospectus Supplement will set forth with regard to the particular Offered Securities, certain terms thereof, including, where applicable, (i) in the case of Debt Securities, the ranking as Senior or Subordinated Debt Securities, the specific title or designation, aggregate principal amount, denominations, maturity, interest rate, if any (which may be fixed or variable), the time and method of calculating interest payments, if any, the time of payment of interest, if any, any listing on a securities exchange, any exchangeability, conversion, redemption, prepayment or sinking fund provisions, the currency or currencies or currency unit or units in which principal, premium, if any, or interest, if any, is payable, initial public offering price and any other specific terms of the Debt Securities; (ii) in the case of Preferred Stock, the specific title or designation, number of shares, and the rights, preferences and privileges thereof, any qualifications or restrictions thereon (including dividends, liquidation value, voting rights, terms for the redemption, conversion or exchange thereof and any other specific terms of the Preferred Stock), and listing, if any, on a securities exchange; (iii) in the case of Depositary Shares, the fractional share of the series of Preferred Stock representing such Depositary Shares, and the other information provided with respect to Preferred Stock; (iv) in the case of Common Stock, the initial offering price; (v) in the case of Warrants, the specific designation, duration, offering price, exercise price, detachability features, any listing of the Warrants or the underlying securities on a securities exchange, as well as the terms on which and the securities for which such Warrants may be exercised; (vi) in the case of Stock Purchase Contracts, the designation and number of shares of Common Stock issuable thereunder, the purchase price of the Common Stock, the date or dates on which the Common Stock is required to be purchased by the holders of the Stock Purchase Contracts, any periodic payments required to be made by the Company to the holders of the Stock Purchase Contracts, or vice versa, and the terms of the offering and sale thereof; (vii) in the case of Stock Purchase Units, the specific terms of the Stock Purchase Contracts and any Debt Securities or Preferred Securities or debt obligations of third parties securing the holder's obligation to purchase the Common Stock under the Stock Purchase Contracts, and the terms of the offering and sale thereof; and (viii) in the case of Preferred Securities, the specific designation, number of securities, liquidation amount per security, the purchase price, any listing on a securities exchange, distribution rate (or method of calculation thereof), dates on which distributions shall be payable and dates from which distributions shall accrue, any voting rights, terms for any conversion or exchange into other securities, any redemption, exchange or sinking fund provisions, any other rights, preferences, privileges, limitations or restrictions relating to the Preferred Securities and the terms upon which the proceeds of the sale of the Preferred Securities shall be used to purchase a specific series of Subordinated Debt Securities of the Company. The Offered Securities may be offered in amounts, at prices and on terms to be determined at the time of offering; provided, however, that the aggregate offering price to the public of the Offered Securities will be limited to $2,500,000,000. Any Prospectus Supplement relating to any Offered Securities will contain information concerning certain United States federal income tax considerations, if applicable, to such Offered Securities. 2 The Offered Securities may be offered directly by the Company, through agents designated from time to time by the Company, or to or through underwriters or dealers. If any agents or underwriters are involved in the sale of any of the Offered Securities, their names, and any applicable purchase price, fee, commission or discount arrangements between or among them, will be set forth, or will be calculable from the information set forth, in the applicable Prospectus Supplement. No Offered Securities may be sold without delivery of the applicable Prospectus Supplement or a term sheet describing the method and terms of the offering of such series of Offered Securities. See "Plan of Distribution." This Prospectus may not be used to consummate sales of the Offered Securities unless accompanied by a Prospectus Supplement. No dealer, salesman or other individual has been authorized to give any information or to make any representations not contained in this Prospectus, any accompanying Prospectus Supplement or the documents incorporated or deemed incorporated herein in connection with the offering covered by this Prospectus or any accompanying Prospectus Supplement. If given or made, such information or representations must not be relied upon as having been authorized by the Company, or any underwriter, dealer or agent. This Prospectus and any accompanying Prospectus Supplement do not constitute an offer to sell, or a solicitation of an offer to buy, any securities other than the registered securities to which it relates in any jurisdiction where, or to any person to whom, it is unlawful to make such offer or solicitation. Neither the delivery of this Prospectus or any accompanying Prospectus Supplement nor any sale made hereunder shall, under any circumstances, create any implication that there has not been any change in the facts set forth in this Prospectus or any accompanying Prospectus Supplement or in the affairs of the Company since the date hereof or thereof. ---------------- Unless otherwise indicated, currency amounts in this Prospectus and any Prospectus Supplement are stated in United States dollars ("$," "dollars" or "U.S.$"). 3 AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act"), and, in accordance therewith, files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information filed by the Company with the Commission can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at the Commission's Regional Offices at 7 World Trade Center, Suite 1300, New York, New York 10048, and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can also be obtained at prescribed rates from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington D.C. 20549. The public may obtain additional information on the operation of the Public Reference Room by calling the Commission at 1-800-SEC-0330. The Commission also maintains a site on the World Wide Web at http://www.sec.gov that contains reports, proxy statements and other information filed electronically through the Commission's Electronic Data Gathering, Analysis and Retrieval System. In addition, the Company's Common Stock is listed on the New York Stock Exchange, Inc. (the "NYSE") under the symbol "SKS." Reports, proxy statements and other information concerning the Company may be inspected at the offices of the NYSE, 20 Broad Street, New York, New York 10005. The Company and the Proffitt's Trusts have filed a Registration Statement on Form S-3 (the "Registration Statement") with the Commission pursuant to the Securities Act of 1933, as amended (the "Securities Act"), with respect to the Offered Securities. This Prospectus, which is part of the Registration Statement, does not contain all of the information set forth in the Registration Statement, certain items of which are contained in the exhibits and schedules thereto as permitted by the Commission's rules and regulations. In addition, certain documents filed by the Company with the Commission have been incorporated in this Prospectus by reference. Statements contained or incorporated herein concerning the provisions of documents included as exhibits hereto or incorporated by reference herein do not purport to be complete and are necessarily summaries of such documents and each such statement is qualified in its entirety by reference to the full text of such document. For further information with respect to the Company, the Proffitt's Trusts and the Offered Securities, reference is made to the Registration Statement, including the schedules and exhibits thereto, and the documents incorporated by reference therein. Certain financial and other information relating to the Company is contained in the documents indicated below under "Incorporation of Certain Documents by Reference." No separate financial statements of the Proffitt's Trusts have been included or incorporated by reference herein. The Company does not consider that such financial statements would be material to holders of Preferred Securities because (i) all of the voting securities of the Proffitt's Trusts will be owned, directly or indirectly, by the Company, a reporting company under the Exchange Act, (ii) the Proffitt's Trusts have and will have no independent operations, but exist for the sole purpose of issuing securities representing undivided beneficial interests in their assets and investing the proceeds thereof in Subordinated Debt Securities issued by the Company, and (iii) the Company's obligations, which are described herein and in any accompanying Prospectus Supplement, pursuant to the Declarations (as defined herein) for the Proffitt's Trusts (including the obligation to pay expenses of the Proffitt's Trusts), the Subordinated Indenture and any supplemental indentures thereto, the Subordinated Debt Securities issued to the Proffitt's Trusts, and the Trust Guarantees, taken together, constitute a full and unconditional guarantee, on a subordinated basis, by the Company of payments due on the Preferred Securities. See "Description of Preferred Securities" and "Description of Trust Guarantees." 4 CAUTIONARY NOTICE REGARDING FORWARD-LOOKING STATEMENTS Certain statements in this Prospectus or in any accompanying Prospectus Supplement (including the information incorporated herein or in any accompanying Prospectus Supplement by reference) may constitute "forward- looking statements" for purposes of the Securities Act and the Exchange Act. Such forward-looking statements involve known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements of the Company to be materially different from any future results, performance or achievements expressed or implied by such forward- looking statements. When used in this Prospectus or in any accompanying Prospectus Supplement, the words "believe," "anticipate," "estimate," "project," "intend," "expect" and similar expressions, when used in connection with the Company or its management, are intended to identify such forward- looking statements. These forward-looking statements were based on various factors and were derived utilizing numerous important assumptions and other important factors that could cause actual results to differ materially from those in the forward-looking statements. Important assumptions and other important factors that could cause actual results to differ materially from those in the forward-looking statements relating to the performance of the Company include, but are not limited to: (i) general economic and business conditions, both nationally and in those market areas in which the Company operates; (ii) changes in merchandise mixes, site selection and related traffic and demographic patterns; (iii) prospects for the retail industry; (iv) the level of consumer spending for apparel and other consumer goods; (v) levels of consumer debt and bankruptcies; (vi) changes in interest rates; (vii) changes in buying, charging and payment behavior among the Company's customers; (viii) the effects of weather conditions on seasonal sales in the market areas served by the Company; (ix) competition among department and specialty stores and other retailers, including luxury goods retailers, general merchandise stores, mail order retailers and off-price and discount stores; (x) the competitive pricing environment within the department and specialty store industries; (xi) the effectiveness of planned advertising, marketing and promotional campaigns; (xii) the speed and effectiveness of identification and implementation of best practices; (xiii) the ability to determine and implement appropriate merchandising strategies, merchandise flow and inventory turnover levels; (xiv) realization of planned synergies and cost savings in existing operations and in recent and future acquisitions; (xv) the ability to integrate acquired businesses; (xvi) any adverse effects of the Year 2000 problem on the Company, especially as a result of such problems at third parties with which the Company does business; (xvii) effective cost containment; (xviii) changes in business strategy or development plans; (xix) the loss of key personnel; (xx) the availability of capital to fund the expansion of Company's business; and (xxi) other factors referenced in this Prospectus or in any accompanying Prospectus Supplement, as well as the information incorporated herein or in any accompanying Prospectus Supplement by reference. Other factors and assumptions not identified above also were involved in the derivation of these forward-looking statements, and the failure of such other assumptions to be realized as well as other factors may also cause actual results to differ materially from those projected. All written or oral forward-looking statements attributable to the Company are expressly qualified in their entirety by the foregoing cautionary statement. Readers are cautioned not to rely on the forward-looking statements, which speak only as of the date of this Prospectus. The Company assumes no obligation to update or to publicly announce the results of any revisions to any of these forward-looking statements to reflect actual results, future events or developments, changes in assumptions or changes in other factors affecting such forward-looking statements. 5 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents filed with the Commission by the Company pursuant to the Exchange Act are incorporated by reference in this Prospectus: (i) Annual Report on Form 10-K for the fiscal year ended January 31, 1998; (ii) Quarterly Reports on Form 10-Q for the fiscal quarters ended May 2, 1998 and August 1, 1998; and (iii) Current Reports filed on Form 8-K dated January 23, 1998, February 11, 1998, February 17, 1998, March 26, 1998, April 13, 1998, July 8, 1998, July 13, 1998 (as amended by the Form 8-K/As filed on July 14, 1998 and August 4, 1998), August 4, 1998, August 20, 1998, August 31, 1998, September 11, 1998 and each of the two Form 8-K's dated September 23, 1998. In addition, all documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the termination of the offering hereunder shall be deemed to be incorporated by reference in this Prospectus and to be part hereof from the date of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for all purposes to the extent that a statement contained herein or in any other subsequently filed document that is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as modified or superseded, to constitute a part of this Prospectus. The Company will provide, without charge, to each person to whom a copy of this Prospectus and any Prospectus Supplement are delivered, upon the written or oral request of such person, a copy of any and all of the documents incorporated by reference (not including the exhibits to such documents, unless such exhibits are specifically incorporated by reference in such documents). Such requests should be directed to Brian J. Martin, Esq., Saks Incorporated, 750 Lakeshore Parkway, Birmingham, Alabama, 35211, or by telephone at (205) 940-4000 or facsimile at (205) 940-4468. 6 THE COMPANY The Company is a leading department store retailer that, as of the date of this Prospectus, operates 331 department stores in 38 states and is the fourth largest traditional department store company in the United States. The Company's stores operate under the Saks Fifth Avenue, Younkers, Off 5th, Parisian, Herberger's, Carson Pirie Scott, McRae's, Proffitts, Bergner's, Boston Store and Bullock & Jones trade names. Carson Pirie Scott, Bergner's and Boston Store are operated as a single "chain" of department stores, and the stores operating under each of the other trade names are operated as separate chains. The Company's stores are typically leading branded traditional department stores in their communities. Most of the stores are located in premier regional or community malls in the respective trade areas served. The Company's stores offer a wide selection of fashion apparel, accessories, cosmetics and decorative home furnishings, featuring assortments of premier brands, private brands and specialty merchandise. Merchandising, sales promotion and certain store operating support functions are conducted in multiple regional locations to tailor regional assortments to the local customer. The Company coordinates merchandising planning and execution among the stores and consolidates certain administrative and support functions to realize scale economies, to promote a competitive cost structure and to increase margins. In addition to its department stores, the Company also operates four furniture stores in the Carson Pirie Scott chain. The Company was incorporated under the laws of the State of Tennessee in 1919. The principal executive offices of the Company are located at 750 Lakeshore Parkway, Birmingham, Alabama 35211, and its telephone number is (205) 940-4000. THE PROFFITT'S TRUSTS Each of the Proffitt's Trusts is a statutory business trust created under Delaware law pursuant to (i) a declaration of trust (as amended and restated, the "Declaration") executed by the Company as sponsor for such trust (the "Sponsor"), and certain of the Proffitt's Trustees (as defined herein) of such trust and (ii) the filing of a certificate of trust with the Secretary of State of the State of Delaware on June 1, 1998 with respect to Proffitt's Capital Trust I and on August 19, 1998 with respect to each of Proffitt's Capital Trusts II, III, IV and V. The Proffitt's Trusts exist for the exclusive purposes of (i) issuing the Preferred Securities and common securities representing undivided beneficial interests in the assets of the Proffitt's Trusts (the "Common Securities" and, together with the Preferred Securities, the "Trust Securities"), (ii) investing the gross proceeds from the sale of the Trust Securities in Subordinated Debt Securities, and (iii) engaging in only those other activities necessary or incidental thereto. All of the Common Securities issued by the Proffitt's Trusts will be owned directly or indirectly by the Company. Such Common Securities will rank pari passu, and payments will be made thereon pro rata, with the Preferred Securities, except that, if any event of default under the Declaration has occurred and is continuing, the rights of the holders of the Common Securities to payment in respect of distributions and 7 payments upon liquidation, redemption and otherwise will be subordinated to the rights of the holders of the Preferred Securities. The Company will directly or indirectly acquire Common Securities in an aggregate liquidation amount equal to at least 3% of the total capital of the Proffitt's Trusts. Each of the Proffitt's Trusts has a term of approximately 45 years, but may dissolve earlier, as provided in the applicable Declaration. The business and affairs of each Proffitt's Trust will be conducted by the trustees (with respect to each of the Proffitt's Trusts, the "Proffitt's Trustees") appointed by the Company as the direct or indirect holder of all the Common Securities. As the holder of the Common Securities, the Company will be entitled to appoint, remove or replace any of, or increase or reduce the number of, the Proffitt's Trustees. The duties and obligations of the Proffitt's Trustees are governed by the applicable Declaration. A majority of the Proffitt's Trustees of each Proffitt's Trust (the "Regular Trustees") are persons who are employees or officers of or who are affiliated with the Company. In addition, one Proffitt's Trustee is a financial institution that is unaffiliated with the Company and has minimum capital and surplus of not less than $50,000,000. That institution acts as property trustee and as indenture trustee for the purpose of compliance with the provisions of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act," or the "TIA"), pursuant to the terms set forth in the applicable Prospectus Supplement (the "Property Trustee"). In addition, unless the Property Trustee maintains a principal place of business in the State of Delaware and otherwise meets the requirements of applicable law, one Proffitt's Trustee will be an entity having a principal place of business in the State of Delaware (the "Delaware Trustee"). The Company will pay all fees and expenses related to the Proffitt's Trusts and the offering of the Trust Securities. The Property Trustee for each of the Proffitt's Trusts is The First National Bank of Chicago, One First National Plaza, Mail Suite 0126, Chicago, Illinois 60670-0126; Attention: Corporate Trustee Administration. The Delaware Trustee for each of the Proffitt's Trusts is First Chicago Delaware Inc. and its address in the State of Delaware is 300 King Street, Wilmington, Delaware 19801, Attention: Mike Majchrzak. The principal place of business of each of the Proffitt's Trusts shall be c/o Saks Incorporated, 750 Lakeshore Parkway, Birmingham, Alabama, 35211, telephone number (205) 940-4000. 8 USE OF PROCEEDS Unless otherwise specified in the applicable Prospectus Supplement for any offering of the Offered Securities, the net proceeds received by the Company from the sale of the Offered Securities will be used for general corporate purposes, which may include, without limitation, funding investments in, or extensions of credit to, the Company's subsidiaries, repayment of maturing obligations, redemption and repurchase of outstanding indebtedness or other securities, financing possible future acquisitions, and for working capital. Pending such use, the Company may temporarily invest the net proceeds or may use them to reduce outstanding amounts under the Company's credit facility or other indebtedness. The proceeds from the sale of Preferred Securities by the Proffitt's Trusts will be invested in Subordinated Debt Securities of the Company. Any proposal to use proceeds from any offering of the Offered Securities in connection with an acquisition will be disclosed in the Prospectus Supplement relating to such offering. CONSOLIDATED RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS The ratio of earnings to combined fixed charges and preferred stock dividends is computed by dividing earnings by the sum of fixed charges and preferred stock dividend requirements. For these purposes, earnings consist primarily of income (loss) before income taxes adjusted for fixed charges. Combined fixed charges and preferred stock dividends consist primarily of interest (whether expensed or capitalized), the portion of rental expense representative of the interest factor in these rentals and preferred stock dividends. The following sets forth the Company's consolidated ratio of earnings to combined fixed charges and preferred dividends for the periods shown:
FOR THE SIX FOR THE 52 WEEKS ENDED, MONTHS ENDED, ----------------------------------------------------------- ------------------- JANUARY 29, JANUARY 28, FEBRUARY 3, FEBRUARY 1, JANUARY 31, AUGUST 2, AUGUST 1, 1994(1) 1995 1996 1997 1998 1997 1998 ----------- ----------- ----------- ----------- ----------- --------- --------- Ratio of Earnings to Fixed Charges.......... -- 1.8 1.3 1.9 2.3 1.4 1.7 === === === === === === ===
- -------- (1) For the fiscal year ended January 29, 1994, the Company reported a pre-tax loss from continuing operations of $366,980, due to Saks Holdings reporting a pre-tax loss of $231,283 as well as Carson Pirie Scott & Co.'s ("CPS") emergence from Chapter 11 bankruptcy during fiscal 1993. Net loss after extraordinary items and changes in accounting methods for fiscal 1993 was $230,091. The ratio of earnings to fixed charges calculation for fiscal year ended January 29, 1994, indicated a fixed charge coverage deficiency of $368,547. 9 DESCRIPTION OF DEBT SECURITIES GENERAL The following description of the terms of the Senior Debt Securities and Subordinated Debt Securities sets forth certain general terms and provisions of the Debt Securities. Each Indenture (as defined below) gives the Company broad authority to set the particular terms of each series of Debt Securities, including the right to modify certain of the terms contained in the Indenture. The particular terms of a series of Debt Securities and the extent, if any, to which the particular terms of the issue modify the terms of the Indenture will be described in the Prospectus Supplement relating to such Debt Securities. The Senior Debt Securities are to be issued under an indenture (the "Senior Indenture"), to be entered into between the Company and The First National Bank of Chicago, as Trustee. The Subordinated Debt Securities are to be issued under an indenture (the "Subordinated Indenture"), also to be entered into between the Company and The First National Bank of Chicago, as Trustee. The term "Trustee" as used herein shall refer to The First National Bank of Chicago, or such other bank or trust company as the Trustee may appoint as trustee pursuant to the terms of the applicable Indenture, in its capacity as Trustee for the Senior Debt Securities or the Subordinated Debt Securities, as appropriate. The Senior Indenture and/or the Subordinated Indenture, as appropriate (being sometimes referred to herein collectively as the "Indentures" and individually as an "Indenture"), will be filed with the Commission upon the execution of a Prospectus Supplement relating to the issuance of Debt Securities thereunder but will be substantially in the forms filed as exhibits to the Registration Statement. The Indentures are subject to and governed by the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and may be supplemented from time to time following execution. The statements made under this heading relating to the Debt Securities and the Indentures are summaries of the provisions thereof and do not purport to be complete and are qualified in their entirety by reference to the Indentures and such Debt Securities. Capitalized terms used but not defined herein shall have the respective meanings set forth in the Indentures. Wherever particular provisions or defined terms of the Indentures are referred to, it is intended that such provisions or defined terms shall be incorporated herein by reference. TERMS The Debt Securities will be direct, unsecured obligations of the Company. The indebtedness represented by the Senior Debt Securities will rank equally with all other unsecured and unsubordinated debt of the Company. The indebtedness represented by the Subordinated Debt Securities will rank junior and subordinate in right of payment to the prior payment in full of the senior debt of the Company, to the extent and in the manner set forth in the Prospectus Supplement for such Securities. See "--Subordination" below. Each Indenture provides that the Debt Securities may be issued without limit as to aggregate principal amount, in one or more series, in each case as established from time to time in, or pursuant to authority granted by, a resolution of the Board of Directors of the Company and in one or more indentures supplemental to such Indenture. Debt Securities may be issued with terms different from those of any other Debt Securities previously issued by the Company. All Debt Securities of one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders of outstanding Debt Securities of such series, for issuances of additional Debt Securities of such series. The Debt Securities may be denominated and payable in U.S. dollars or in foreign currencies or units based on or related to foreign currencies, including European Currency Units ("ECUs"). Special United States federal income tax considerations applicable to any Debt Securities denominated other than in U.S. dollars will be described in the relevant Prospectus Supplement. Each Indenture provides that there may be more than one Trustee thereunder, each with respect to one or more series of Debt Securities. Any Trustee under an Indenture may resign or be removed with respect to one or more series of Debt Securities, and a successor Trustee may be appointed to act with respect to such series. In 10 the event that two or more persons are acting as Trustee with respect to different series of Debt Securities, each such Trustee shall be a Trustee of a trust under the applicable Indenture separate and apart from the trust administered by any other Trustee, and, except as otherwise indicated herein, any action described herein to be taken by each Trustee may be taken by each such Trustee with respect to, and only with respect to, the one or more series of Debt Securities for which it is Trustee under the applicable Indenture. Reference is made to the applicable Prospectus Supplement relating to a particular series of Debt Securities being offered thereby for the specific terms of the Debt Securities, including, but not limited to: (1) the title of and ranking as Senior Debt Securities or Subordinated Debt Securities; (2) the aggregate principal amount; (3) the issue price; (4) the terms, if any, by which such Securities may be convertible into or exchangeable for other securities or property of the Company; (5) when, how much, at what place, under what conditions, and in what currency, principal, premium, if any, and interest are payable, and if any of the foregoing is not known at the time the Prospectus Supplement is filed, the method of determining the same; (6) any terms with respect to subordination; (7) terms of any mandatory redemption, sinking fund, or similar obligation; (8) provisions, if any, affording holders of the Debt Securities protection in the event of a highly leveraged or similar transaction involving the Company; (9) any terms with respect to the events of default; (10) whether such Debt Securities will be issued in book-entry form; (11) whether such Debt Securities will be in registered ("Registered Debt Securities") or bearer ("Bearer Debt Securities") form; (12) the applicability, if any, of the discharge, defeasance and covenant defeasance provisions of the Indenture; and (13) any other terms of such Debt Securities which are not inconsistent with the Trust Indenture Act. The Debt Securities may provide for less than the entire principal amount thereof to be payable upon declaration of acceleration of the maturity thereof as a result of the occurrence and continuation of an Event of Default ("Original Issue Discount Securities"). Any special U.S. federal income tax, accounting and other considerations applicable to Original Issue Discount Securities will be described in the applicable Prospectus Supplement. Debt Securities may be issued, from time to time, with the principal amount payable on any principal payment date, or the amount of interest payable on any interest payment date, to be determined by reference to one or more currency exchange rates, commodity prices, equity indices or other factors. Holders of such Debt Securities may receive a principal amount on any principal payment date, or a payment of interest on any interest payment date, that is greater than or less than the amount of principal or interest otherwise payable on such dates, depending upon the value on such dates of the applicable currency, commodity, equity index or other factors. Information as to the methods for determining the amount of principal or interest payable on any date, the currencies, commodities, equity indices or other factors to which the amount payable on such date is linked and certain additional tax considerations will be set forth in the applicable Prospectus Supplement. All Debt Securities of any one series shall be substantially identical, except, in the case of Debt Securities issued in global form, as to denomination and except as may otherwise be provided in or pursuant to resolution of the Board of Directors of the Company or in any indenture supplemental to the Indenture. 11 Reference is made to the applicable Prospectus Supplement for information with respect to any deletions from, modifications of or additions to the Events of Default or covenants of the Company that are described below, including any addition of a covenant or other provision providing event risk or similar protection. GUARANTEES The Debt Securities may be guaranteed on a senior or unsubordinated basis by subsidiaries of the Company, which would guarantee the due and punctual payment of principal of, premium, if any, and interest on such Debt Securities, and the due and punctual payment of any sinking fund payments thereon, when and as the same shall become due and payable whether at a maturity date, by declaration of acceleration, call for redemption or otherwise. The applicability and terms of any such guarantee relating to a series of Debt Securities will be set forth in the Prospectus Supplement relating to such Debt Securities. DENOMINATIONS, INTEREST, REGISTRATION AND TRANSFER Unless otherwise described in the applicable Prospectus Supplement, the Debt Securities of any series issued in registered form will be issuable in denominations of $1,000 and integral multiples thereof. Unless otherwise described in the applicable Prospectus Supplement, the Debt Securities of any series issued in bearer form will be issuable in denominations of $5,000. Unless otherwise specified in the applicable Prospectus Supplement, the principal of (and applicable premium or Make-Whole Amount, if any) and interest, if any, on any series of Debt Securities will be payable in the currency designated in the Prospectus Supplement at the corporate trust office of the Trustee, initially located at One First National Plaza, Mail Suite 0126, Chicago, Illinois 60670-0126; Attention: Corporate Trustee Administration in the case of each of the Senior Debt Securities and the Subordinated Debt Securities, provided 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 it appears in the Security Register for such series or by wire transfer of funds to such Person at an account maintained within the United States. The Company may at any time designate additional Paying Agents or rescind the designation of any Paying Agents or approve a change in the office through which any Paying Agent acts, except that the Company will be required to maintain a Paying Agent in each Place of Payment for such series. All monies paid by the Company to a Paying Agent for the payment of principal of and premium, if any, and interest, if any, on any Debt Security which remains unclaimed at the end of two years after such principal, premium or interest shall have become due and payable will be repaid to the Company, and the Holder of such Debt Security will thereafter look only to the Company for payment thereof. Any interest not punctually paid or duly provided for on any Interest Payment Date with respect to a Debt Security ("Defaulted Interest") will forthwith cease to be payable to the Holder on the applicable Regular Record Date and may either be paid to the Person in whose name such Debt Security is registered at the close of business on a special record date (the "Special Record Date") for the payment of such Defaulted Interest to be fixed by the applicable Trustee, notice whereof shall be mailed to each Holder of such Debt Security not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner, all as more completely described in the applicable Indenture. Subject to certain limitations imposed upon Debt Securities issued in book- entry form, the Debt Securities of any series will be exchangeable for other Debt Securities of the same series and of a like aggregate principal amount and tenor of different authorized denominations upon surrender of such Debt Securities at the corporate trust office of the applicable Trustee referred to above. In addition, subject to certain limitations imposed upon Debt Securities issued in book-entry form, the Debt Securities of any series may be surrendered for conversion or registration of transfer or exchange at the corporate trust office of the applicable Trustee referred to above. Every Debt Security surrendered for conversion, registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer. No service charge will be made for any registration of transfer or exchange of any Debt Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. If the applicable Prospectus Supplement refers to 12 any transfer agent (in addition to the applicable Trustee) initially designated by the Company with respect to any series of Debt Securities, the Company may at any time rescind the designation of any such transfer agent or approve a change in the location through which any such transfer agent acts, except that the Company will be required to maintain a transfer agent in each Place of Payment for such series. The Company may at any time designate additional transfer agents with respect to any series of Debt Securities. Neither the Company nor any Trustee shall be required to: (i) issue, register the transfer of or exchange Debt Securities of any series during a period beginning at the opening of business 15 days before any selection of Debt Securities of that series to be redeemed and ending at the close of business on the day of mailing or publication of the relevant notice of redemption; (ii) register the transfer of or exchange any Debt Security, or portion thereof, called for redemption, except the unredeemed portion of any Debt Security being redeemed in part; (iii) exchange any Bearer Debt Security selected for redemption, except that such a Bearer Debt Security may be exchanged for a Registered Debt Security of that series and like tenor, provided that such Bearer Debt Security shall be simultaneously surrendered for redemption or exchange; or (iv) issue, register the transfer of or exchange any Debt Security that has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Debt Security not to be so repaid. GLOBAL DEBT SECURITIES The registered Debt Securities of a series may be issued in the form of one or more fully registered global Securities (a "Registered Global Security") that will be deposited with a depositary (a "Depositary") or with a nominee for a Depositary identified in the Prospectus Supplement relating to such series and registered in the name of the Depositary or a nominee thereof. In such case, one or more Registered Global Securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal amount of outstanding registered Debt Securities of the series to be represented by such Registered Global Security or Securities. Unless and until it is exchanged in whole for Debt Securities in definitive registered form, a Registered Global Security may not be transferred except as a whole by the Depositary for such Registered Debt Security to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor of such Depositary or a nominee of such successor. The specific terms of the depositary arrangement with respect to any portion of a series of Debt Securities to be represented by a Registered Global Security will be described in the Prospectus Supplement relating to such series. The Company anticipates that the following provisions will apply to all depositary arrangements. Ownership of beneficial interests in a Registered Global Security will be limited to Persons that have accounts with the Depositary for such Registered Global Security ("participants") or persons that may hold interests through participants. Upon the issuance of a Registered Global Security, the Depositary for such Registered Global Security will credit, on its book-entry registration and transfer system, the participants' accounts with the respective principal amounts of the Debt Securities represented by such Registered Global Security beneficially owned by such participants. The accounts to be credited shall be designated by any dealers, underwriters or agents participating in the distribution of such Debt Securities. Ownership of beneficial interests in such Registered Global Security will be shown on, and the transfer of such ownership interests will be effected only through, records maintained by the Depositary for such Registered Global Security (with respect to interests of participants) and on the records of participants (with respect to interests of persons holding through participants). The laws of some states may require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and such laws may impair the ability to own, transfer or pledge beneficial interests in Registered Global Securities. So long as the Depositary for a Registered Global Security, or its nominee, is the registered owner of such Registered Global Security, such Depositary or such nominee, as the case may be, will be considered the sole owner or holder of The Debt Securities represented by such Registered Global Security for all purposes under the applicable Indenture. Except as set forth below, owners of beneficial interests in a Registered Global Security 13 will not be entitled to have the Debt Securities represented by such Registered Global Security registered in their names, will not receive or be entitled to receive physical delivery of such Debt Securities in definitive form and will not be considered the owners or Holders thereof under the applicable Indenture. Accordingly, each person owning a beneficial interest in a Registered Global Security must rely on the procedures of the Depositary for such Registered Global Security and, if such person is not a participant, on the procedures of the participant or other intermediary through which such person owns its interest, to exercise any rights of a Holder under the applicable Indenture. The Company understands that, under existing industry practices, if the Company requests any action of Holders, or if an owner of a beneficial interest in a Registered Global Security desires to give or take any action which a Holder is entitled to give or take under the applicable Indenture, the Depositary for such Registered Global Security would authorize the participants holding the relevant beneficial interests to give or take such action, and such participants would authorize beneficial owners owning through such participants to give or take such action or would otherwise act upon the instructions of beneficial owners holding through them. Payments of principal and premium or Make-Whole Amount, if any, and interest, if any, or any Additional Amounts payable with respect to Debt Securities represented by a Registered Global Security registered in the name of a Depositary or its nominee will be made to such Depositary or its nominee, as the case may be, as the registered owners of such Registered Global Security. None of the Company, the Trustee or any other agent of the Company or agent of the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in such Registered Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. The Company expects that the Depositary for any Debt Securities represented by a Registered Global Security, upon receipt of any payment of principal, premium or interest in respect of such Registered Global Security, will immediately credit participants' accounts with payments in amounts proportionate to their respective beneficial interests in such Registered Global Security as shown on the records of such Depositary. The Company also expects that payments by participants to owners of beneficial interests in such Registered Global Security held through such participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of such participants. If the Depositary for any Debt Securities represented by a Registered Global Security is at any time unwilling or ineligible to continue as Depositary, and a successor Depositary is not appointed by the Company within 90 days, the Company will issue such Debt Securities in definitive form in exchange for such Registered Global Security. In addition, the Company may at any time and in its sole discretion determine not to have any of the Debt Securities of a series represented by one or more Registered Global Securities and, in such event, will issue Debt Securities of such series in a definitive form in exchange for all of the Registered Global Security or Securities representing such Debt Securities. Any Debt Securities issued in definitive form in exchange for a Registered Global Security will be registered in such name or names as the Depositary shall instruct the Trustee. The Company expects that such instructions will be based upon directions received by the Depositary from participants with respect to ownership of beneficial interests in such Registered Global Security. Bearer Debt Securities of a series may also be issued in the form of one or more global Securities (a "Bearer Global Security") that will be deposited with a common depositary for Euroclear and CEDEL, or with a nominee for such depositary identified in the Prospectus Supplement relating to such series. The specific terms and procedures, including the specific terms of the depositary arrangement and any specific procedures for the issuance of Debt Securities in definitive form in exchange for a Bearer Global Security, with respect to any portion of a series of Debt Securities to be represented by a Bearer Global Security, will be described in the Prospectus Supplement relating to such series. MERGER, CONSOLIDATION OR SALE The Company may consolidate with, or sell, lease or convey all or substantially all of its assets to, or merge with or into, any other corporation or trust or entity provided that: (i) either the Company shall be the continuing 14 entity, or the successor entity (if other than the Company) formed by or resulting from any such consolidation or merger or which shall have received the transfer of such assets shall be an entity organized under the laws of the United States or any state thereof and expressly assume by supplemental indenture the due and punctual payment of the principal of (and premium or Make-Whole Amount, if any) and interest (including any Additional Amounts), if any, on all of the Debt Securities and the due and punctual performance and observance of all of the covenants and conditions contained in each Indenture; (ii) immediately after giving effect to such transaction and treating any indebtedness that becomes an obligation of the Company or any Subsidiary as a result thereof as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default under the Indenture, and no event which, after notice or the lapse of time, or both, would become such an Event of Default, shall have occurred and be continuing; and (iii) certain other conditions are met. This covenant would not apply to any recapitalization transaction, a change of control of the Company or a highly leveraged transaction unless such transactions or change of control were structured to include a merger or consolidation or transfer or lease of the Company's assets substantially as an entirety. Except as may be described in a Prospectus Supplement applicable to a particular series of Debt Securities, there are no covenants or other provisions in the Indentures providing for a put or increased interest or that would otherwise afford holders of Debt Securities additional protection in the event of a recapitalization transaction, a change of control of the Company or a highly leveraged transaction. COVENANTS Any covenants with respect to any series of Debt Securities will be set forth in the Prospectus Supplement relating thereto. EVENTS OF DEFAULT, NOTICE AND WAIVER Except as otherwise provided in a Prospectus Supplement with respect to a particular series of Debt Securities, each Indenture may provide that the following events are "Events of Default" with respect to any series of Debt Securities issued thereunder: (i) default for 30 days in the payment of any installment of interest or Additional Amounts, if any, payable on any Debt Security of such series; (ii) default in the payment of the principal of (or premium or Make-Whole Amount, if any, on) any Debt Security of such series when due, either at maturity, redemption or otherwise; (iii) default in making any sinking fund payment as required for any Debt Security of such series; (iv) default in the performance or breach of any other covenant or agreement of the Company contained in the Indenture continued for 60 days after written notice as provided in the applicable Indenture; (v) default under a bond, debenture, note or other evidence of indebtedness for money borrowed by the Company (or by any Subsidiary, the repayment of which the Company has guaranteed or for which the Company is directly responsible or liable as obligor or guarantor other than indebtedness which is non-recourse to the Company or the Subsidiaries), having a principal amount in excess of a minimum amount set forth in the applicable Prospectus Supplement, whether such indebtedness now exists or shall hereafter be created, which default shall have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such acceleration having been rescinded or annulled within 30 days after written notice to the Company as provided in the Indenture; (vi) certain events of bankruptcy, insolvency or reorganization; and (vii) any other Event of Default provided with respect to a particular series of Debt Securities. If an Event of Default under an Indenture with respect to Debt Securities of any series at the time outstanding occurs and is continuing, then in every such case the applicable Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Debt Securities (as defined in the Indentures) of each such affected series (voting as a single class) may declare the principal amount (or, if the Debt Securities of that series are Original Issue Discount Securities (as defined in the Indentures) or Indexed Securities (as defined in the Indentures), such portion of the principal amount as may be specified in the terms thereof) of and premium or Make-Whole Amount, if any, on all of the Debt Securities of that series to be due and payable immediately by written notice thereof to the Company (and to the applicable Trustee if given by the Holders). However, at 15 any time after such a declaration of acceleration with respect to Debt Securities of such series (or of all Debt Securities then Outstanding under the applicable Indenture, as the case may be) has been made, but before a judgment or decree for payment of the money due has been obtained by the applicable Trustee, the Holders of not less than a majority in principal amount of the Outstanding Debt Securities of such series (or of all Debt Securities then Outstanding under the applicable Indenture, as the case may be) may rescind and annul such declaration and its consequences if (i) the Company shall have deposited with the applicable Trustee all required payments of the principal of (and premium or Make-Whole Amount, if any) and interest (and Additional Amounts, if any) on the Debt Securities of such series (or of all Debt Securities then Outstanding under the applicable Indenture, as the case may be), plus certain fees, expenses, disbursements and advances of the applicable Trustee and (ii) all Events of Default, other than the nonpayment of accelerated principal (or a specified portion thereof and the premium or Make-Whole Amount, if any) or interest (and Additional Amounts, if any), with respect to Debt Securities of such series (or of all Debt Securities then Outstanding under the applicable Indenture, as the case may be) have been cured or waived as provided in the Indenture. Each Indenture also provides that the Holders of not less than a majority in principal amount of the Outstanding Debt Securities of any series (or of all Debt Securities then Outstanding under the applicable Indenture, as the case may be) may waive any past default with respect to such series and its consequences, except a default (x) in the payment of principal of (or premium or Make-Whole Amount, if any) or interest (or Additional Amounts, if any), on any Debt Security of such series or (y) in respect of a covenant or provision contained in the applicable Indenture that cannot be modified or amended without the consent of the Holders of each Outstanding Debt Security affected thereby. The Trustee may be required to give notice to the Holders of Debt Securities within 90 days of a default under the applicable Indenture unless such default shall have been cured or waived; provided, however, that such Trustee may withhold notice to the Holders of any series of Debt Securities of any default with respect to such series (except a default in the payment of the principal of (or premium or Make-Whole Amount, if any) or interest (or Additional Amounts, if any), on any Debt Security of such series or in the payment of any sinking fund installment in respect of any Debt Security of such series) if the Responsible Officers (as defined in the Indentures) of such Trustee consider such withholding to be in the interest of such Holders. Each Indenture may provide that no Holder of Debt Securities of any series may institute any proceedings, judicial or otherwise, with respect to such Indenture or for any remedy thereunder, except in the case of failure of the applicable Trustee, for 60 days, to act after it has received a written request to institute proceedings in respect of an Event of Default from the Holders of not less than 25% in principal amount of the Outstanding Debt Securities of such series, as well as an offer of indemnity reasonably satisfactory to it. This provision would not prevent, however, any Holder of Debt Securities from instituting suit for the enforcement of payment of the principal of (and premium or Make-Whole Amount, if any) and interest (or Additional Amounts), if any, payable with respect to such Debt Securities at the respective due dates thereof. Subject to provisions in each Indenture relating to its duties in case of default, the Trustee is not under an obligation to exercise any of its rights or powers under such Indenture at the request or direction of any Holders of any series of Debt Securities then Outstanding under such Indenture, unless such Holders shall have offered to the Trustee thereunder reasonable security or indemnity. Subject to such provisions for the indemnification of the Trustee, the Holders of not less than a majority in principal amount of the Outstanding Debt Securities of any series (or of all Debt Securities then Outstanding under each Indenture, as the case may be) may have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable Trustee, or of exercising any trust or power conferred upon such Trustee. However, the Trustee may refuse to follow any direction which is in conflict with any law or the applicable Indenture, which may involve such Trustee in personal liability or which may be unduly prejudicial to the Holders of Debt Securities of such series not joining therein. Within 120 days after the close of each fiscal year, the Company must deliver to each Trustee a certificate, signed by one of several specified officers, stating such officer's knowledge of the Company's compliance with all the conditions and covenants under the applicable Indenture and, in the event of any noncompliance, specifying such noncompliance and the nature and status thereof. 16 MODIFICATION OF THE INDENTURES Modifications and amendments of an Indenture applicable to any series may be made only with the consent of the Holders of not less than a majority in principal amount of all Outstanding Debt Securities issued under such Indenture which are affected by such modification or amendment; provided, however, that no such modification or amendment may, without the consent of the Holder of each such Debt Security affected thereby, (i) change the Stated Maturity (as defined in the Indentures) of the principal of (or premium or Make-Whole Amount, if any), or any installment of principal of or interest (or Additional Amounts, if any), payable on, any such Debt Security, (ii) reduce the principal amount of, or the rate or amount of interest on, or any premium or Make-Whole Amount, payable on redemption of or any Additional Amount, if any, payable with respect to any such Debt Security, or reduce the amount of principal of an Original Issue Discount Security or Make-Whole Amount, if any, that would be due and payable upon declaration of acceleration of the maturity thereof or would be provable in bankruptcy, or adversely affect any right of repayment of the Holder of any such Debt Security, (iii) change the Place of Payment (as defined in the Indentures) where, or the currency or currencies, currency units or composite currency or currencies in which payment of the principal of (and Premium or Make-Whole Amount, if any), or interest (or Additional Amounts, if any) payable with respect to, any such Debt Security, is payable, (iv) impair the right to institute suit for the enforcement of any payment on or with respect to any such Debt Security, (v) reduce the percentage of the Holders of outstanding Debt Securities of any series necessary to modify or amend the applicable Indenture, to waive compliance with certain provisions thereof or certain defaults and consequences thereunder or to reduce the quorum or voting requirements set forth in the applicable Indenture, or (vi) modify any of the foregoing provisions or any of the provisions relating to the waiver of certain past defaults or certain covenants, except to increase the required percentage to effect such action or to provide that certain other provisions may not be modified or waived without the consent of the Holders of such Debt Security. The Holders of not less than a majority in principal amount of Outstanding Debt Securities issued under either Indenture have the right to waive compliance by the Company with certain covenants in such Indenture. Modifications and amendments of an Indenture may be made by the Company and the respective Trustee thereunder without the consent of any Holder of Debt Securities for any of the following purposes: (i) to evidence the succession of another Person to the Company as obligor under such Indenture; (ii) to add to the covenants of the Company for the benefit of the Holders of all or any series of Debt Securities or to surrender any right or power conferred upon the Company in such Indenture; (iii) to add Events of Default for the benefit of the Holders of all or any series of Debt Securities; (iv) to add or change any provisions of an Indenture to facilitate the issuance of, or to liberalize certain terms of, Debt Securities in bearer form, or to permit or facilitate the issuance of Debt Securities in uncertificated form, provided that such action shall not adversely affect the interests of the Holders of the Debt Securities of any series in any material respect; (v) to add, change or eliminate any provisions of an Indenture, provided that any such addition, change or elimination shall become effective only when there are no Outstanding Debt Securities of any series created prior thereto which are entitled to the benefit of such provision; (vi) to secure the Debt Securities; (vii) to establish the form or terms of additional Debt Securities of any series, including the provisions and procedures, if applicable, for the conversion of such Debt Securities into Common Stock of the Company or other securities or property of the Company; (viii) to provide for the acceptance or appointment of a successor Trustee or facilitate the administration of the trusts under an Indenture by more than one Trustee; (ix) to cure any ambiguity, defect or inconsistency in an Indenture, provided that such action shall not adversely affect the interests of Holders of Debt Securities of any series issued under such Indenture in any material respect; (x) to close an Indenture with respect to the authentication and delivery of additional series of Debt Securities or to qualify, or maintain qualification of, an Indenture under the Trust Indenture Act; or (xi) to supplement any of the provisions of an Indenture to the extent necessary to permit or facilitate defeasance and discharge of any series of such Debt Securities, provided that such action shall not adversely affect the interests of the Holders of the Debt Securities of any series in any material respect. 17 SUBORDINATION The Subordinated Indenture contains only minimal provisions relating to the subordination of the Subordinated Debt Securities. Those provisions are summarized below. The extent to which a particular series of Subordinated Debt Securities is subordinated to other indebtedness of the Company will be set forth in the Prospectus Supplement for that series. The particular terms of subordination of an issue of Subordinated Debt Securities may supersede the general provisions of the Subordinated Indenture summarized below. Upon any distribution to creditors of the Company in a liquidation, dissolution, bankruptcy, insolvency or reorganization, the payment of the principal of and interest on the Subordinated Debt Securities will be subordinated to the extent provided in the Subordinated Indenture in right of payment to the prior payment in full of all Senior Debt, but the obligation of the Company to make payment of the principal of and interest on the Subordinated Securities will not otherwise be affected. No payment of principal or interest may be made on the Subordinated Securities at any time in the event there shall have occurred and be continuing a default in any payment with respect to Senior Debt, or an event of default with respect to any Senior Debt resulting in the acceleration of the maturity thereof, or if any judicial proceeding shall be pending with respect to any such default and the Company receives notice of the default. The Company may resume payments on the Subordinated Securities when the default is cured or waived if the subordination provisions of the Subordinated Indenture otherwise permit payment at that time. After all Senior Debt is paid in full and until the Subordinated Debt Securities are paid in full, Holders will be subrogated to the rights of holders of Senior Debt to the extent that distributions otherwise payable to Holders have been applied to the payment of Senior Debt. By reason of such subordination, in the event of a distribution of assets upon insolvency, certain general creditors of the Company may recover more, ratably, than Holders of the Subordinated Securities. There is no limit on the amount of senior debt that the Company may incur. In addition, there are no restrictions in the Subordinated Indenture upon the creation of additional senior debt or other indebtedness. DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE Under each Indenture, the Company may discharge certain obligations to Holders of any series of Debt Securities issued thereunder if the relevant defeasance provisions were made applicable to the series at the time it was issued. There are two types of defeasance, one which discharges the Company from virtually all obligations with respect to the series of Debt Securities (called "defeasance") and the other which discharges the Company only from certain covenant obligations (called "covenant defeasance"). The Prospectus Supplement for a series may make either or both types of defeasance applicable to a series. Under defeasance, the Company will be discharged from any and all obligations with respect to the series of Debt Securities except (i) for the obligation to pay Additional Amounts, if any, upon the occurrence of certain events of tax, assessment or governmental charge with respect to payments on the series and (ii) for certain ministerial obligations like the obligation to register the exchange or transfer of the Debt Securities and to maintain an office or registry for the Debt Securities. Under covenant defeasance, by contrast, the Company will be discharged only from certain covenant obligations such as those described under "Certain Covenants" with the result that any failure of the Company to comply with the defeased covenants will not result in a Default or Event of Default. The discharge is effected by irrevocably depositing with the Trustee in trust an amount, either in cash or in Government Obligations (as defined below) or in a combination of the two, which will provide money in an amount sufficient to pay the principal of (and premium or Make-Whole Amount, if any) and interest on the Debt Securities, and any mandatory sinking fund or analogous payments on the Debt Securities, on the scheduled dates of payment. The cash and Governmental Obligations deposited with the Trustee must be denominated in the currency, currencies, currency units or composite currencies in which the series is payable. "Government Obligations" means securities which are (i) direct obligations of the United States of America or the government which issued the Foreign Currency (as defined in the Indentures) in which the Debt Securities of a particular series are payable, for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United 18 States of America or the government which issued the Foreign Currency in which the Debt Securities of such series are payable, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America or such other government, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt, 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 depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of the Government Obligation evidenced by such depository receipt. As a condition to either type of defeasance, the Company must deliver to the applicable Trustee an Opinion of Counsel (as specified in each Indenture) to the effect that the Holders of the Debt Securities will not recognize income, gain or loss for United States federal income tax purposes as a result of such defeasance or covenant defeasance and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance or covenant defeasance had not occurred, and such Opinion of Counsel, in the case of defeasance, must refer to and be based upon a ruling of the Internal Revenue Service or a change in applicable United States federal income tax laws occurring after the date of such Indenture. If, after either type of defeasance has been effected with respect to an issue of Debt Securities, the currency in which such issue is to be paid changes either as a result of an election which a Holder of a security of that series is entitled to make or as a result of a "Conversion Event" (as defined below), then the indebtedness represented by the Securities will be fully discharged and satisfied through the payment of the principal of (and premium or Make-Whole Amount, if any) and interest on the Securities as they become due by converting the amounts provided by the trust into the new currency or currency unit at the exchange rate current at that time. Unless otherwise provided in a Prospectus Supplement, "Conversion Event" means the cessation of use of (i) a currency, currency unit or composite currency issued by the government of one or more countries other than the United States both by the government of the country that issued such currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community, or (ii) the ECU, both within the European Monetary System and for the settlement of transactions by public institutions of or within the European Community, or (iii) any currency unit or composite currency for the purposes for which it was established. Unless otherwise provided in the applicable Prospectus Supplement, all payments of principal of (and premium or Make-Whole Amount, if any) and interest (and Additional Amounts, if any) on any Debt Security that is payable in a Foreign Currency that ceases to be used by its government of issuance shall be made in United States dollars. In the event the Company effects covenant defeasance with respect to any Debt Securities and such Debt Securities are declared due and payable because of the occurrence of any Event of Default other than with respect to a covenant as to which there has been covenant defeasance, the amount on deposit with the Trustee, will be sufficient to pay amounts due on such Debt Securities at the time of their Stated Maturity but may not be sufficient to pay amounts due on such Debt Securities at the time of the acceleration resulting from such Event of Default. However, the Company would remain liable to make payment of such amounts due at the time of acceleration. The applicable Prospectus Supplement may further describe the provisions, if any, permitting defeasance or covenant defeasance, including any modifications to the provisions described above. CONVERSION AND EXCHANGE RIGHTS The terms on which Debt Securities of any series are convertible into or exchangeable for Common Stock or other securities or property of the Company will be set forth in the Prospectus Supplement relating thereto. 19 Such terms shall include the conversion or exchange price (or manner of calculation thereof), the exchange or conversion period, provisions as to whether conversion or exchange is mandatory, at the option of the Holder or at the option of the Company, and may include provisions pursuant to which the number of shares, other securities or property of the Company to be received by the Holders of Debt Securities would be calculated. The conversion or exchange price of any Debt Securities of any series that is convertible into Common Stock, Preferred Stock, Depositary Shares of the Company may be adjusted for any stock dividends, stock splits, reclassification, combinations or similar transactions, as set forth in the applicable Prospectus Supplement. GOVERNING LAW The Indentures are governed by and shall be construed in accordance with the laws of the State of New York. REDEMPTION OF DEBT SECURITIES The Prospectus Supplement for a series of Debt Securities will describe the terms pursuant to which the Securities of that series may be redeemed: whether mandatory or at the option of the Company, whether in whole or in part and at what price or Make-Whole Amount. The Indentures specify the procedures for effecting a redemption. From and after notice has been given as provided in the Indenture, if funds for the redemption of any Debt Securities called for redemption shall have been made available on such redemption date, such Debt Securities will cease to bear interest on the date fixed for such redemption specified in such notice, and the only right of the Holders of the Debt Securities will be to receive payment of the Redemption Price (as defined in the Indentures). THE TRUSTEE The First National Bank of Chicago is one of a number of banks with which the Company and its subsidiaries maintain banking relationships in the ordinary course of business. The Company's banking relationship with The First National Bank of Chicago includes existing trustee relations, general lending activities, and general banking services. Upon the occurrence of an Event of Default or an event which, after notice or lapse of time or both, would become an Event of Default under a series of Debt Securities, or upon the occurrence of a default under such other indenture, the Trustee may be deemed to have a conflicting interest with respect to the Debt Securities for purposes of the Trust Indenture Act and, accordingly, may be required to resign as Trustee under one or both of the Indentures. In that event, the Company would be required to appoint a successor Trustee. 20 DESCRIPTION OF PREFERRED STOCK The following describes generally the terms of the Preferred Stock. The particular terms of the Preferred Stock offered by any Prospectus Supplement and the extent, if any, to which such general provisions may apply to the Preferred Stock so offered will be described in the Prospectus Supplement relating to such Preferred Stock. GENERAL Under the Company's Amended and Restated Charter (the "Charter") and Amended and Restated Bylaws (the "Bylaws"), which are filed as exhibits to the Registration Statement of which this Prospectus is a part, the Board of Directors of the Company is authorized without further shareholder action to adopt resolutions providing for the issuance of up to 10,000,000 shares of Preferred Stock, in one or more series, with such voting powers, full or limited, and with such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions, as may be determined by the Board of Directors. As of the date of this Prospectus, the Company had no shares of Preferred Stock outstanding. The Company has established a series of Preferred Stock, par value $1.00 per share, designated as the Series C Junior Preferred Stock ("Series C Junior Preferred Stock") consisting of 1,500,000 shares to be issued under certain circumstances involving a potential change in control of the Company. The terms of the Series C Junior Preferred Stock are described below under "Series C Junior Preferred Stock." The Prospectus Supplement relating to the particular series of Preferred Stock offered will describe the specific terms, including, where applicable: (i) the title, designation, number of shares and stated value of such Preferred Stock; (ii) the price at which such Preferred Stock will be issued; (iii) the dividend rates (or method of calculation) and dates on which dividends shall be payable, whether such dividends will be cumulative or noncumulative and, if cumulative, the dates from which dividends shall commence to cumulate; (iv) the dates on which the Preferred Stock will be subject to redemption and the redemption price; (v) any redemption or sinking fund provisions; (vi) whether the Preferred Stock is convertible or exchangeable and, if so, the securities or rights into which such Preferred Stock is convertible or exchangeable (which may include other Preferred Stock, Senior Debt Securities, Subordinated Debt Securities, Common Stock or other securities or rights of the Company (including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies or indices) or securities of other issuers or a combination of the foregoing), and the terms and conditions upon which such conversions or exchanges will be effected including the initial conversion or exchange prices or rates, the conversion or exchange period and any other related provisions; (vii) if other than the currency of the United States of America, the currency or currencies including composite currencies in which such Preferred Stock is denominated and/or in which payments will or may be payable; (viii) the method by which amounts in respect of such Preferred Stock may be calculated and any commodities, currencies or indices, or value, rate or price, relevant to such calculation; (ix) the place or places where dividends and other payments on the Preferred Stock are payable and the identity of the transfer agent, registrar and dividend disbursement agent for the Preferred Stock; (x) any additional dividend, liquidation, redemption, sinking fund, voting and other rights, preferences, privileges, limitations and restrictions. Unless otherwise specified in the Prospectus Supplement relating to a particular series of Preferred Stock, each series of Preferred Stock will rank on a parity in all respects with each other series of Preferred Stock. See "Series C Junior Preferred Stock," below. DIVIDENDS Holders of Preferred Stock will be entitled to receive cash dividends, when and as declared by the Board of Directors of the Company out of assets of the Company legally available for payment, at such rates and on such dates as will be set forth in the applicable Prospectus Supplement. Each dividend will be payable to holders of record as they appear on the stock books of the Company on the record dates fixed by the Board of Directors of the Company. Different series of the Preferred Stock may be entitled to dividends at different rates or based upon different methods of determination. Such rate may be fixed or variable or both. Dividends on any series of 21 the Preferred Stock may be cumulative or noncumulative, as provided in the Prospectus Supplement relating thereto. Except as provided in the related Prospectus Supplement no series of Preferred Stock will be entitled to participate in the Company's earnings or assets. LIQUIDATION RIGHTS Unless otherwise stated in the applicable Prospectus Supplement, in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of each series of Preferred Stock will be entitled to receive out of assets of the Company available for distribution to shareholders, before any distribution of assets is made to holders of Common Stock or any other class of stock ranking junior to such series of Preferred Stock, liquidating distributions in the amount of the stated value per share (as set forth in the applicable Prospectus Supplement) plus all accrued and unpaid dividends up to the date fixed for distribution for the current dividend period and, if such series of the Preferred Stock is cumulative, for all dividend periods prior thereto, all as set forth in the Prospectus Supplement with respect to such shares. If, upon any voluntary or involuntary liquidation, dissolution or winding up of the Company, the amounts payable with respect to a series of Preferred Stock and any other shares of stock of the Company ranking as to any distribution on a parity with such series of Preferred Stock are not paid in full, the holders of such series of Preferred Stock and of such other shares will share ratably in any such distribution of assets of the Company in proportion to the full respective preferential amounts to which they are entitled. After payment of the full amount of the liquidating distribution to which they are entitled, the holders of Preferred Stock will not be entitled to any further participation in any distribution of assets by the Company. Neither the sale, conveyance, exchange or transfer of all or substantially all the property and assets of the Company, the consolidation or merger of the Company with or into any other corporation, nor the merger or consolidation of any other corporation into or with the Company shall be deemed to be a liquidation, dissolution or winding up of the Company. REDEMPTION AND SINKING FUND The terms, if any, on which shares of a series of Preferred Stock may be subject to optional or mandatory redemption, in whole or in part, or have the benefit of a sinking fund, will be set forth in the Prospectus Supplement relating to such series. VOTING RIGHTS Except as indicated below or in the applicable Prospectus Supplement, or except as expressly required by applicable law, the holders of the Preferred Stock issued pursuant to this Prospectus and any Prospectus Supplement will not be entitled to vote. CONVERSION AND EXCHANGE RIGHTS The terms, if any, on which shares of any series of Preferred Stock are convertible or exchangeable will be set forth in the Prospectus Supplement relating thereto. The Prospectus Supplement will describe the securities or rights into which such shares of Preferred Stock are convertible or exchangeable (which may include other Preferred Stock, Debt Securities, Depositary Shares, Common Stock or other securities or rights of the Company (including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies or indices) or securities of other issuers or a combination of the foregoing). Such terms may include provisions for conversion, either mandatory, at the option of the holder, or at the option of the Company, in which case the consideration to be received by the holders of Preferred Stock would be calculated as of a time and in the manner stated in the Prospectus Supplement. TRANSFER AGENT AND REGISTRAR The transfer agent, registrar and dividend disbursement agent for the Preferred Stock will be designated in the applicable Prospectus Supplement. 22 SERIES C JUNIOR PREFERRED STOCK Pursuant to the Company's Charter, the Series C Junior Preferred Stock consists of 1,500,000 shares of authorized Preferred Stock. No shares of Series C Junior Preferred Stock have been issued, and unless indicated otherwise in a Prospectus Supplement, the Company is aware of no facts suggesting that issuance of such shares may be imminent. Any increase in the number of authorized shares of Series C Junior Preferred Stock does not require approval of the Company's shareholders under the Tennessee Business Corporation Act (the "TBCA"). The ability of the Board of Directors of the Company to issue Preferred Stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could have the effect of making it more difficult for a third party to acquire, or of discouraging a third party from acquiring, a majority of the outstanding voting stock of the Company. The following summary of the Series C Junior Preferred Stock is qualified in its entirety by reference to the Charter, the Bylaws, and the applicable provisions of the TBCA. Capitalized terms used but not defined herein shall have the meanings set forth in the Charter, the Bylaws and the TBCA. Rights Agreement. On March 28, 1995, the Board of Directors of the Company declared a dividend distribution of one right (a "Right") for each share of Common Stock pursuant to a Rights Agreement (the "Rights Agreement") dated as of March 28, 1995 between the Company and Union Planters Bank, N.A., as Rights Agent. Each Right entitles the holder to purchase from the Company one one- hundredth ( 1/100) of a share of Series C Preferred Stock at a price of $85 per one one-hundredth ( 1/100) of a share. The Rights Agreement was amended on March 25, 1998 by Amendment No. 1 to the Rights Agreement to increase the exercise price of the Rights to $278 per one one-hundredth ( 1/100) of a share of Series C Junior Preferred Stock, subject to adjustment. Initially, the Rights are not exercisable. However, they will become exercisable if, without the prior approval of the Board of Directors of the Company, any person either acquires 20% or more of the shares of Common Stock then outstanding or commences a tender or exchange offer which, if successfully consummated, would result in such person's acquisition of 20% or more of the shares of Common Stock then outstanding. The Rights are generally designed to deter coercive takeover tactics and to encourage all persons interested in potentially acquiring control of the Company to treat each shareholder on a fair and equal basis. Dividends and Distributions. Subject to any shares of a series of Preferred Stock (or any similar stock) ranking senior to the Series C Junior Preferred Stock with respect to dividends, each share of Series C Junior Preferred Stock, if issued, would be entitled to receive quarterly dividends on the first day of March, June, September and December in each year (each, a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the issuance of such share of Series C Junior Preferred Stock in an amount per share (rounded to the nearest cent) equal to the greater of: (a) $1.00, or (b) 100 times the aggregate per share amount of all cash and non-cash dividends or distributions, other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series C Junior Preferred Stock. In the event the Company declares a dividend on the Common Stock that is payable in shares of Common Stock, or effects a subdivision, combination or consolidation of the outstanding shares of Common Stock into a greater or lesser number of shares of Common Stock, the amount to which holders of shares of Series C Junior Preferred Stock will be entitled under clause (b) of the preceding paragraph shall be adjusted by multiplying such amount by a fraction (the "Adjustment Multiplier"), the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. Dividend payments on shares of Series C Junior Preferred Stock are in preference to the holders of Common Stock and of any other junior stock. In addition, such dividends will accrue and be cumulative on outstanding shares of Series C Junior Preferred Stock. However, any accrued but unpaid dividends shall not bear interest. 23 Dividends paid on the shares of Series C Junior Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. In the event that dividends or other distributions payable on the Series C Junior Preferred Stock are in arrears, thereafter and until all accrued and unpaid dividends have been paid in full, the Company is prohibited from: (i) declaring dividends or making any distributions on any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series C Junior Preferred Stock; (ii) declaring dividends or making any distributions on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series C Junior Preferred Stock, except dividends paid ratably on the Series C Junior Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; (iii) redeeming or otherwise acquiring for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series C Junior Preferred Stock, provided that the Company may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of the Company ranking junior (as to dividends and upon dissolution, liquidation and winding up) to the Series C Junior Preferred Stock; or (iv) redeeming or otherwise acquiring for consideration any shares of Series C Junior Preferred Stock, or any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series C Junior Preferred Stock, except in accordance with a purchase offer made in writing or by publication to all holders of such shares upon such terms as the Board, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. Liquidation Preference. Upon any liquidation, dissolution or winding up of the Company, the Company is prohibited from making a distribution (1) to the holders of shares of stock ranking junior to the Series C Junior Preferred Stock unless, prior thereto, the holders of shares of Series C Junior Preferred Stock shall have received $1.00 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon; provided that the holders of shares of Series C Junior Preferred Stock are entitled to receive an aggregate amount per share equal to 100 times the aggregate amount to be distributed per share to holders of shares of Common Stock, or (2) to the holders of shares of stock ranking on a parity with the Series C Junior Preferred Stock except distributions made ratably on the Series C Junior Preferred Stock and all such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the Company declares or pays a dividend on the Common Stock payable in shares of Common Stock, or effects a subdivision, combination or consolidation of the outstanding shares of Common Stock into a greater or lesser number of shares of Common Stock, the aggregate amount to which holders of shares of Series C Junior Preferred Stock would otherwise be entitled pursuant to clause (1) above will be adjusted by multiplying such amount by the Adjustment Multiplier. Voting Rights. Each share of Series C Junior Preferred Stock is entitled to 100 votes on all matters submitted to a vote of the Company's shareholders; provided, however, that, in the event the Company at any time declares a dividend on the Common Stock payable in shares of Common Stock, or effects a subdivision, combination or consolidation of the outstanding shares of Common Stock into a greater or lesser number of shares of Common Stock, the number of votes per share of Series C Junior Preferred Stock will be adjusted by multiplying such number by the Adjustment Multiplier. 24 Mergers, Consolidations and Certain Other Transactions. In the case of a consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, each share of Series C Junior Preferred Stock is entitled to be similarly exchanged or changed into an amount per share equal to 100 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. Redemption. The shares of Series C Junior Preferred Stock are not redeemable. Rank. The Series C Junior Preferred Stock rank, with respect to the payment of dividends and the distribution of assets, junior to all series of any other class of the Company's Preferred Stock. Amendment. The Charter of the Company may not be amended in any manner which would materially alter or change the powers, preferences or special rights of the Series C Junior Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at least a majority of the outstanding shares of Series C Junior Preferred Stock, voting together as a single class. DESCRIPTION OF DEPOSITARY SHARES The Company may, at its option, elect to offer fractional interests in shares of a series of Preferred Stock as Depositary Shares, rather than full shares of Preferred Stock. In such event, receipts ("Depositary Receipts") for such Depositary Shares will be issued, each of which will represent a fraction of a share of a particular series of Preferred Stock, as described in the related Prospectus Supplement. Shares of any series of Preferred Stock represented by Depositary Shares will be deposited under a Deposit Agreement (the "Deposit Agreement") between the Company and the depositary (the "Preferred Stock Depositary"). The Prospectus Supplement relating to a series of Depositary Shares will set forth the name and address of the Depositary with respect to such Depositary Shares. Subject to the terms of the Deposit Agreement, each holder of a Depositary Share will be entitled, in proportion to the applicable fraction of a share of Preferred Stock represented by such Depositary Share, to all the rights and preferences of the Preferred Stock represented thereby (including dividend, voting, conversion or exchange, redemption, and liquidation rights, if any). Depositary Shares will be evidenced by Depositary Receipts issued pursuant to the applicable Deposit Agreement. Immediately following the issuance and delivery of the Preferred Stock by the Company to a Depositary, the Company will cause such Depositary to issue, on behalf of the Company, the Depositary Receipts. Copies of the applicable form of Deposit Agreement and Depositary Receipt may be obtained from the Company upon request, and the statements made hereunder relating to the Deposit Agreement and the Depositary Receipt to be issued thereunder are summaries of certain anticipated provisions thereof and do not purport to be complete and are subject to, and qualified in their entirety by reference to, all of the provisions of the applicable Deposit Agreement and related Depositary Receipts. DIVIDENDS AND OTHER DISTRIBUTIONS The Preferred Stock Depositary will distribute all cash dividends or other cash distributions received in respect of a series of Preferred Stock to the record holders of Depositary Receipts relating to such Preferred Stock in proportion to the number of such Depositary Receipts owned by such holders on the relevant Record Date, subject to certain obligations of holders to file proofs, certificates and other information and to pay certain charges and expenses to such Preferred Stock Depositary. The Preferred Stock Depositary shall distribute only such amount, however, as can be distributed without attributing to any holder of Depositary Shares a fraction of one cent, and the balance not so distributed shall be added to and treated as part of the next sum received by the Preferred Stock Depositary for distribution to record holders of Depositary Shares. 25 In the event of a distribution other than in cash, the Preferred Stock Depositary will distribute property received by it to the record holders of Depositary Shares in an equitable manner, unless the Preferred Stock Depositary determines that it is not feasible to make such distribution, in which case the Preferred Stock Depositary, with the Company's approval, may sell such property and distribute the net proceeds from such sale to such holders. The Deposit Agreement will also contain provisions relating to the manner in which any subscription or similar rights offered by the Company to holders of the Preferred Stock shall be made available to the holders of Depositary Shares. Upon surrender of the Depositary Receipts at the corporate trust office of the Preferred Stock Depositary (unless the related Depositary Shares have previously been called for redemption, or converted or exchanged), the holders thereof will be entitled to delivery at such office, to or upon each such holder's order, of the number of whole or fractional shares of the class or series of Preferred Stock and any money or other property represented by the Depositary Shares evidenced by such Depositary Receipts. Holders of Depositary Receipts will be entitled to receive whole or fractional shares of the related class or series of Preferred Stock on the basis of the proportion of Preferred Stock represented by each Depositary Share as specified in the applicable Prospectus Supplement, but holders of such shares of Preferred Stock will not thereafter be entitled to receive Depositary Shares therefor. If the Depositary Receipts delivered by the holder evidence a number of Depositary Shares in excess of the number of Depositary Shares representing the number of shares of Preferred Stock to be withdrawn, the Preferred Stock Depositary will deliver to such holder at the same time a new Depositary Receipt evidencing such excess number of Depositary Shares. REDEMPTION OF DEPOSITARY SHARES If a series of Preferred Stock represented by Depositary Shares is subject to redemption, the Depositary Shares will be redeemed from the proceeds received by the Preferred Stock Depositary resulting from the redemption, in whole or in part, of such class or series of Preferred Stock held by the Preferred Stock Depositary. The Preferred Stock Depositary shall mail notice of redemption not less than 30 and not more than 60 days prior to the date fixed for redemption to the record holders of the Depositary Shares to be so redeemed at their respective addresses appearing in the Preferred Stock Depositary's books. The redemption price per Depositary Share will be equal to the applicable fraction of the redemption price and other amounts, if any per share payable with respect to such class or series of Preferred Stock. Whenever the Company redeems Preferred Stock held by the Preferred Stock Depositary, the Preferred Stock Depositary will redeem as of the same redemption date the number of Depositary Shares representing Preferred Stock so redeemed. If fewer than all the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will be selected by lot or pro rata as may be determined to be equitable by the Preferred Stock Depositary. From and after the date fixed for redemption, the Depositary Shares so called for redemption will no longer be outstanding, and all rights of the holders of the Depositary Shares will cease, except the right to receive the money, securities, or other property payable upon such redemption and any money, securities, or other property to which the holders of such Depositary Shares were entitled upon such redemption upon surrender to the Preferred Stock Depositary of the Depositary Receipts evidencing such Depositary Shares. VOTING THE PREFERRED STOCK Upon receipt of notice of any meeting at which the holders of a class or series of Preferred Stock are entitled to vote, the Preferred Stock Depositary will mail the information contained in such notice of meeting to the record holders of the Depositary Receipts evidencing the Depositary Shares of such class or series of Preferred Stock. Each record holder of such Depositary Receipts on the record date (which will be the same date as the record date for the related class or series of Preferred Stock) will be entitled to instruct the Preferred Stock Depositary as to the exercise of the voting rights pertaining to the amount of Preferred Stock represented by such holder's Depositary Shares. The Preferred Stock Depositary will endeavor, insofar as practicable, to vote 26 the number of shares of Preferred Stock represented by such Depositary Shares in accordance with such instructions, and the Company will agree to take all reasonable action which may be deemed necessary by the Preferred Stock Depositary in order to enable the Preferred Stock Depositary to do so. The Preferred Stock Depositary will abstain from voting the Preferred Stock to the extent it does not receive specific instructions from the holder of Depositary Shares representing such shares of Preferred Stock. The Preferred Stock Depositary will not be responsible for any failure to carry out any instruction to vote, or for the manner or effect of any such vote made, as long as any such action or non-action is in good faith and does not result from the negligence or willful misconduct of the Stock Depositary. LIQUIDATION PREFERENCE In the event of the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, the holders of each Depositary Receipt will be entitled to the fraction of the liquidation preference accorded each share of related Preferred Stock as set forth in the applicable Prospectus Supplement. CONVERSION OF PREFERRED STOCK The Depositary Shares, as such, will not be convertible into Common Stock or any other securities or property of the Company. Nevertheless, if so specified in a Prospectus Supplement relating to an offering of Depositary Shares, the Depositary Receipts may be surrendered by the holders thereof to the Preferred Stock Depositary with written instructions directing the Company to cause conversion of a class or a series of Preferred Stock represented by the related Depositary Shares into whole shares of Common Stock, other shares of a class or series of Preferred Stock of the Company or other shares of stock. Upon receipt of such instructions and any amounts payable in respect thereof, the Company will cause such conversion utilizing the same procedures as those provided for delivery of Preferred Stock to effect such conversion. If the Depositary Shares evidenced by a Depositary Receipt are to be converted in part only, a Depositary Receipt or Receipts will be issued for any Depositary Shares not converted. No fractional shares of Common Stock will be issued upon conversion, and if such conversion will result in a fractional share being issued, an amount will be paid in cash by the Company equal to the value of the fractional interest based upon the closing price of the Common Stock on the last business day prior to the conversion. AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT The form of Depositary Receipt evidencing the Depositary Shares and any provision of the Deposit Agreement may be amended at any time by agreement between the Company and the Preferred Stock Depositary. However, any amendment which materially and adversely alters the rights of the holders of Depositary Receipts or that would be materially and adversely inconsistent with the rights of holders of the underlying Preferred Stock will be ineffective, unless such amendment has been approved by the holders of at least a majority of the Depositary Shares then outstanding. No amendment shall impair the right, subject to certain anticipated exceptions in the Deposit Agreement, of any holder of Depositary Receipts to surrender any Depositary Receipt with instructions to deliver to the holder the related class or series of Preferred Stock and all money and other property, if any, represented thereby, except in order to comply with law. Every holder of any outstanding Depositary Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such Depositary Receipt, to consent and agree to such amendment and to be bound by the applicable Deposit Agreement as amended thereby. The Deposit Agreement may be terminated by the Company upon not less than 30 days prior written notice to the Preferred Stock Depositary if a majority of each class or series of Preferred Stock subject to such Deposit Agreement consents to such termination, whereupon the Preferred Stock Depositary will deliver or make available to each holder of Depositary Receipts, upon surrender of the Depositary Receipts held by such holder, such number of whole or fractional shares of Preferred Stock as are represented by the Depositary Shares evidenced by such Depositary Receipts, together with any other property held by the Preferred Stock Depositary with respect to such Depositary Receipts. The Deposit Agreement will automatically terminate if (i) all outstanding Depositary Shares related thereto have been redeemed, (ii) there has been a final distribution in 27 respect of the Preferred Stock in connection with any liquidation, dissolution or winding up of the Company and such distribution has been distributed to the holders of the related Depositary Receipts, or (iii) each share of the related Preferred Stock has been converted into Company stock not so represented by Depositary Shares. CHARGES OF DEPOSITARY The Company will pay all transfer and other taxes and governmental charges arising solely from the existence of the Depositary Agreement. The Company will pay the Preferred Stock Depositary's fees and charges in connection with the initial deposit of the Preferred Stock and issuance of Depositary Receipts, all withdrawals of Preferred Stock by owners of Depositary Shares and any redemption of the Preferred Stock. Holders of Depositary Receipts will pay all other transfer and other taxes, governmental charges, and fees and charges of the Preferred Stock Depositary that are not expressly provided for in the Deposit Agreement. RESIGNATION AND REMOVAL OF DEPOSITARY The Preferred Stock Depositary may resign at any time by delivering to the Company notice of its election to do so, and the Company may at any time remove the Preferred Stock Depositary, any such resignation or removal to take effect upon the appointment of a successor Depositary and such successor Depositary's acceptance of the appointment. Such successor Depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000. MISCELLANEOUS The Preferred Stock Depositary will forward all reports and communications from the Company which are delivered to the Preferred Stock Depositary and which the Company is required or otherwise determines to furnish to the holders of the Preferred Stock. Neither the Preferred Stock Depositary nor the Company will be liable if it is prevented or delayed by law or any circumstance beyond its control in performing its obligations under the Deposit Agreement. The obligations of the Company and the Preferred Stock Depositary under the Deposit Agreement will be limited to performing in good faith their duties thereunder (in the case of any action or inaction in the voting of a class or series of Preferred Stock represented by the Depositary Shares), gross negligence or willful misconduct. The Company and the Preferred Stock Depositary will not be obligated to prosecute or defend any legal proceeding in respect of any Depositary Shares, Depositary Receipts or shares of any Preferred Stock represented thereby, unless satisfactory indemnity is furnished. The Company and the Preferred Stock Depositary may rely upon written advice of counsel or accountants, or information provided by persons presenting shares of Preferred Stock for deposit, holders of Depositary Receipts or other persons believed to be competent and on documents believed to be genuine. DESCRIPTION OF COMMON STOCK The following description of the terms of the Common Stock sets forth certain general rules and provisions of the Common Stock as contained in the Charter and Bylaws and is qualified in its entirety by reference to the Charter and Bylaws. The Company is authorized to issue an aggregate of 300,000,000 shares of Common Stock. As of September 17, 1998, there were 143,394,198 shares of Common Stock outstanding held by approximately 2,600 shareholders of record. All outstanding shares of Common Stock are fully paid and nonassessable. The Common Stock is listed on the NYSE under the symbol "SKS" 28 GENERAL Holders of Common Stock have no preemptive, subscription, redemption or conversion rights. The rights, preferences and privileges of holders of Common Stock are subject to, and may be adversely affected by, the rights of the holders of any series of Preferred Stock, whether currently outstanding or designated and issued in the future. See "Description of Preferred Stock." DIVIDENDS Subject to the preferences of holders of Preferred Stock, including the Series C Junior Preferred Stock, holders of Common Stock are entitled to dividends when, as, and if declared by the Board of Directors out of funds legally available therefor. VOTING RIGHTS Except as otherwise provided by law or by the designation of the preferences, limitations and relative rights of any series of Preferred Stock, the voting power of the Company is held by the holders of Common Stock. Each holder of Common Stock is entitled to one vote for each share held. Holders of Common Stock are not entitled to cumulative voting rights and, therefore, holders of a plurality of shares voting in the election of directors may elect the entire class of the Board of Directors standing for election at a shareholders' meeting at which a quorum is present. In that event, holders of the remaining shares of Common Stock would not be able to elect any director to the Board of Directors. The Company's Charter requires that its Board of Directors be staggered, consisting of three classes of directors which are as nearly equal in number as possible. See "Anti-Takeover Provisions in the Company's Charter and Bylaws--Staggered Board of Directors." LIQUIDATION AND DISSOLUTION Except as otherwise provided by the designation of the preferences, limitations and relative rights of any series of Preferred Stock, including the Series C Junior Preferred Stock, in the event of any liquidation, dissolution, or winding up of the Company, whether voluntary or involuntary, after payment has been made to the holders of each series of Preferred Stock of the full amount to which they are entitled, the holders of shares of Common Stock will be entitled to share, ratably according to the number of shares of Common Stock held by them, in all remaining assets if available for distribution to holders of the Common Stock. Shares of the Series C Junior Preferred Stock have a liquidation preference as described under "Description of Preferred Stock--Series C Junior Preferred Stock--Liquidation Preference." INDEMNIFICATION Article XII of the Charter and Article IV of the Bylaws provide that a director or officer of the Company may be indemnified to the maximum extent now or hereafter permitted by the TBCA. The Commission has taken the position that similar provisions added to other corporations' articles of incorporation would not protect those corporations' directors from liability for violations of the federal securities laws. The Company has included this provision in its Charter to provide its directors with the maximum indemnification made available by the TBCA. It is believed that this provision will help the Company to attract and retain as directors the persons most qualified for those positions. TRANSFER AGENT The transfer agent and registrar for the Common Stock is Union Planters Bank, N.A. CERTAIN PROVISIONS OF TENNESSEE LAW REGARDING TAKEOVERS As a Tennessee corporation, the Company is subject to certain provisions of Tennessee law which may discourage or render more difficult an unsolicited takeover of the Company. These provisions include Tennessee's Business Combination Act, Control Share Acquisition Act, Investor Protection Act and Greenmail Act. 29 Business Combination Act. Tennessee's Business Combination Act (the "Business Combination Act") provides that a party owning 10% or more of stock in a "resident domestic corporation" (such party is called an "interested shareholder") cannot engage in a business combination with the resident domestic corporation unless the combination (i) takes place at least five years after the interested shareholder first acquired 10% or more of the resident domestic corporation, and (ii) either (A) is approved by at least 2/3 of the noninterested voting shares of the resident domestic corporation or (B) satisfies certain fairness conditions specified in the Business Combination Act. These provisions apply unless one of two events occurs. A business combination with an entity can proceed without delay when approved by the target corporation's board of directors before that entity becomes an interested shareholder, or the resident corporation may enact a charter amendment or bylaw to remove itself entirely from the Business Combination Act. This charter amendment or by-law must be approved by a majority of the shareholders who have held shares for more than one year prior to the vote. It may not take effect for at least two years after the vote. The Company has not adopted a provision in its Charter or Bylaws removing the Company from coverage under the Business Combination Act. The Business Combination Act further provides an exemption from liability for officers and directors of resident domestic corporations who do not approve proposed business combinations or charter amendments and by-laws removing their corporations from the Business Combination Act's coverage as long as the officers and directors act in "good faith belief" that the proposed business combination would adversely affect their corporation's employees, customers, suppliers, or the communities in which their corporation operates and such factors are permitted to be considered by the board of directors under the charter. The Company's Charter presently contains no provisions relating to the Board's consideration of such factors. Control Share Acquisition Act. The Tennessee Control Share Acquisition Act ("TCSAA") strips a purchaser's shares of voting rights any time an acquisition of shares in a covered Tennessee corporation brings the purchaser's voting power to one-fifth, one-third or a majority of all voting power. The purchaser's voting rights can be reestablished only by a majority vote of the other shareholders. The purchaser may demand a special meeting of shareholders to conduct such a vote. The purchaser can demand such a meeting before acquiring a control share only if it holds at least 10% of outstanding shares and announces a good faith intention to make the control share acquisition. A target corporation may or may not redeem the purchaser's shares if the shares are not granted voting rights. The TCSAA applies only to a corporation that has adopted a provision in its charter or by-laws expressly declaring that the TCSAA will apply. The Company has not adopted any provision in its Charter or Bylaws electing protection under the TCSAA. Investor Protection Act. Tennessee's Investor Protection Act ("TIPA") applies to tender offers directed at corporations (called "offeree companies") that have "substantial assets" in Tennessee and that are either incorporated in or have a principal office in Tennessee. By virtue of its incorporation under the laws of the State of Tennessee, the Company is subject to the provisions of the TIPA. The TIPA requires an offeror making a tender offer for an offeree company to file with the Commissioner of Commerce and Insurance (the "Commissioner") a registration statement. When the offeror intends to gain control of the offeree company, the registration statement must indicate any plans the offeror has for the offeree. The Commissioner may require additional information material to the takeover offer and may call for hearings. The TIPA does not apply to an offer that the offeree company's board of directors recommends to shareholders. In addition to requiring the offeror to file a registration statement with the Commissioner, the TIPA requires the offeror and the offeree company to deliver to the Commissioner all solicitation materials used in connection with the tender offer. The TIPA prohibits "fraudulent, deceptive, or manipulative acts or practices" by either side, and gives the Commissioner standing to apply for equitable relief to the Chancery Court of Davidson County, Tennessee, or to any other chancery court having jurisdiction whenever it appears to the Commissioner that the offeror, the offeree company, or any of its respective affiliates has engaged in or is about to engage in a violation of the TIPA. Upon proper showing, the Chancery Court may grant injunctive relief. The TIPA further provides civil and criminal penalties for violations. 30 Greenmail Act. The Tennessee Greenmail Act ("TGA") applies to any corporation (including the Company) chartered under the laws of Tennessee which has a class of voting stock registered or traded on a national securities exchange or registered with the Commission pursuant to Section 12(g) of the Exchange Act. The TGA provides that it is unlawful for any corporation or subsidiary to purchase, either directly or indirectly, any of its shares at a price above the market value, as defined in the TGA, from any person who holds more than 3% of the class of the securities purchased if such person has held such shares for less than two years, unless either the purchase is first approved by the affirmative vote of a majority of the outstanding shares of each class of voting stock issued or the corporation makes an offer of at least equal value per share to all holders of shares of such class. ANTI-TAKEOVER PROVISIONS IN THE COMPANY'S CHARTER AND BYLAWS Removal of Directors. The Company's Charter and Bylaws provide that any or all directors may be removed only for cause (as defined in the TBCA) by a vote of a majority of the shareholders entitled to vote thereon. Staggered Board of Directors. The Company's Charter requires that its Board of Directors be staggered, consisting of three classes of directors which are as nearly equal in number as possible. The initial terms of the Class I, Class II and Class III directors expire at the Company's annual meeting of shareholders in the years 1998, 1999 and 2000, respectively. Thereafter, directors of each class are elected for terms of three years. The Company's Charter also provides that the affirmative vote of the holders of at least 80% of the voting power of the then outstanding capital stock, voting together as a single class, is required to amend or repeal, or adopt any provision inconsistent with, the provision of the Company's Charter requiring a staggered Board of Directors. Required Shareholder Vote for Authorization of Certain Actions. The TBCA provides that the approval of the Company's Board of Directors and of a majority of the outstanding shares of the Company's Common Stock entitled to vote thereon would generally be required to approve a merger or to sell, lease, exchange or otherwise dispose of substantially all of the Company's assets. However, the Company's Charter provides that, except under specified circumstances, the affirmative vote of the holders of at least 80% of the voting power of the then outstanding shares of capital stock entitled to vote in the election of directors, voting together as a single class, is required for the approval of (i) certain mergers or consolidations, (ii) certain sales, leases, exchanges, mortgages, pledges or other dispositions of the assets of the Company, (iii) the adoption of a plan for the liquidation of the Company, (iv) certain reclassifications of the Company's securities and certain recapitalizations and (v) any agreement providing for the foregoing. No Shareholder Action by Written Consent. The Company's Charter and Bylaws require that any shareholder action must be effected at a duly called annual or special meeting and may not be effected by written consent. Authorized Capital Stock. The Company's Charter authorizes the issuance of up to 300,000,000 shares of Common Stock and up to 10,000,000 shares of Preferred Stock. Such shares may be issued by the Company's Board of Directors without further action or authorization by the Company's shareholders, unless such action is required in a particular case by applicable laws or regulations or by any stock exchange upon which the Company's capital stock may be listed and the directors may fix the voting rights, conversion rights, and other terms thereof without shareholder approval. Preferred Stock will be issuable in one or more classes or series, with each class or series having such rights and preferences as the Company's Board of Directors may fix and determine by resolution. This authority of the Board of Directors to issue additional shares of Common Stock and Preferred Stock will provide the Company with the flexibility necessary to meet its future needs without the time delay resulting from seeking shareholder approval unless otherwise required. The unissued shares of Common Stock and Preferred Stock will be issuable from time to time for any corporate purpose, including, without limitation, stock splits, stock dividends, employee benefit and compensation plans, acquisitions, and public or private sales for 31 stock ownership of persons seeking to obtain control of the Company. In addition, the sale of a substantial number of shares of Common Stock to persons who have an understanding with the Company concerning the voting of such shares, or the discriminatory distribution or dividend of shares of Common Stock (or the right to receive Common Stock) to the shareholders of the Company, may have the effect of discouraging or increasing the cost of unsolicited attempts to acquire control of the Company. The issuance of Preferred Stock may also, under certain circumstances, have an anti-takeover effect, particularly if such stock has broad class voting rights or a substantial number of votes per share. The actual effect of any issuance of Preferred Stock upon the rights of holders of Common Stock cannot be specified because the Company's Board of Directors has not determined the issuance prices or terms or the rights of the holders of any Preferred Stock, other than the Series C Junior Preferred Stock. Such effects might include: (i) restrictions on Common Stock dividends if Preferred Stock dividends have not been paid; (ii) dilution of the voting power and equity interest of current holders of Common Stock to the extent that any Preferred Stock has voting rights or is convertible into Common Stock; and (iii) current holders of all the shares of Common Stock not being entitled to share in the Company's assets upon liquidation until satisfaction of any liquidation preferences granted to holders of Preferred Stock. Rights Agreement. The Company has adopted and implemented a Rights Agreement that is generally designed to deter coercive takeover tactics and to encourage all persons interested in potentially acquiring control of the Company to treat each shareholder on a fair and equal basis. See "Description of Preferred Stock--Series C Junior Preferred Stock--Rights Agreement." Effect Of Anti-Takeover Provisions. Certain provisions of the Company's Charter, Bylaws and Rights Agreement may tend to discourage certain kinds of unsolicited takeover bids for the Company, including some tender offers which shareholders may feel would be in their best interests, and may tend to perpetuate present management. Certain provisions of the TBCA may be deemed to have an "anti-takeover" effect as well. These provisions affect shareholder rights and should be given careful attention. They may have the effect of delaying a tender offer or takeover attempt that a shareholder might consider in his or her best interest, including those attempts that might result in a premium over the current market price for the shares held by shareholders. See "Description of Preferred Stock" and "Description of Common Stock" generally. DESCRIPTION OF WARRANTS The following description of the terms of the Warrants sets forth certain general rules and provisions of the Warrants to which any Prospectus Supplement may relate. Particular terms of the Warrants offered by any Prospectus Supplement and the extent, if any, to which such general provisions may apply to the Warrants so offered will be described in the Prospectus Supplement relating to such Warrants. GENERAL The Company may issue Warrants to purchase Senior Debt Securities, Subordinated Debt Securities, Preferred Stock, Depositary Shares, Common Stock or any combination thereof (collectively, the "Underlying Warrant Securities"), and such Warrants may be issued independently or together with any such Underlying Warrant Securities and may be attached or separate from such Underlying Warrant Securities. Each series of Warrants will be issued under a separate warrant agreement (each a "Warrant Agreement") to be entered into between the Company and a warrant agent ("Warrant Agent"). The Warrant Agent will act solely as an agent of the Company in connection with the Warrants of such series and will not assume any obligation or relationship of agency for or with holders or beneficial owners of Warrants. The applicable Prospectus Supplement will describe the terms of any Warrants in respect of which this Prospectus is being delivered, including the following: (i) the title of such Warrants; (ii) the aggregate number of 32 such Warrants; (iii) the price or prices at which such Warrants will be issued; (iv) the currency or currencies, including composite currencies, in which the price of such Warrants may be payable; (v) the designation and terms of the Underlying Warrant Securities purchasable upon exercise of such Warrants and the number of such Underlying Warrant Securities issuable upon exercise of such Warrants; (vi) the price at which and the currency or currencies, including composite currencies, in which the Underlying Warrant Securities purchasable upon exercise of such Warrants may be purchased; (vii) the date on which the right to exercise such Warrants shall commence and the date on which such right shall expire; (viii) whether such Warrants will be issued in registered form or bearer form; (ix) if applicable, the minimum or maximum amount of such Warrants which may be exercised at any one time; (x) if applicable, the designation and terms of the Underlying Warrant Securities with which such Warrants are issued and the number of such Warrants issued with each such Underlying Warrant Security; (xi) if applicable, the date on and after which such Warrants and the related Underlying Warrant Securities will be separately transferable; (xii) information with respect to book-entry procedures, if any; (xiii) if applicable, a discussion of certain United States federal income tax considerations; (xiv) the procedures and conditions relating to the exercise of such Warrants; and (xv) any other terms of such Warrants, including terms, procedures and limitations relating to the exchange and exercise of such Warrants. Warrant certificates may be exchanged for new warrant certificates of different denominations, and Warrants may be exercised at the corporate trust office of the Warrant Agent or any other office indicated in the Prospectus Supplement. Prior to the exercise of their Warrants, holders of Warrants exercisable for Debt Securities will not have any of the rights of holders of the Debt Securities purchasable upon such exercise and will not be entitled to payments of principal (or premium, if any) or interest, if any, on the Debt Securities purchasable upon such exercise. Prior to the exercise of their Warrants for shares of Preferred Stock or Common Stock, holders of such Warrants will not have any rights of holders of the Preferred Stock or Common Stock purchasable upon such exercise and will not be entitled to dividend payments, if any, or voting rights of the Preferred Stock or Common Stock purchasable upon such exercise. DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS The following description of the terms of the Stock Purchase Contracts and Stock Purchase Units (as defined below) sets forth certain general rules and provisions of the Stock Purchase Contracts and/or Stock Purchase Units to which any Prospectus Supplement may relate. Particular terms of the Stock Purchase Contracts and/or Stock Purchase Units offered by any Prospectus Supplement and the extent, if any, to which such general provisions may apply to the Stock Purchase Contracts and/or Stock Purchase Units so offered will be described in the Prospectus Supplement relating to such Stock Purchase Contracts and/or Stock Purchase Units. The Company may issue Stock Purchase Contracts, representing contracts obligating holders to purchase from the Company, and the Company to sell to the holders, a specified number of shares of Common Stock at a future date or dates. The price per share of Common Stock may be fixed at the time the Stock Purchase Contracts are issued or may be determined by reference to a specific formula set forth in the Stock Purchase Contracts. The Stock Purchase Contracts may be issued separately or as a part of units ("Stock Purchase Units") consisting of a Stock Purchase Contract and (x) Senior Debt Securities or Subordinated Debt Securities (y) Preferred Securities, or (z) debt obligations of third parties, including U.S. government or agency securities, each securing the holders' obligations to purchase the Common Stock under the Stock Purchase Contracts. The Stock Purchase Contracts may require the Company to make periodic payments to the holders of the Stock Purchase Units or vice versa, and such payments may be unsecured or prefunded on some basis. The Stock Purchase Contracts may require holders to secure their obligations thereunder in a specified manner. 33 DESCRIPTION OF PREFERRED SECURITIES The following description of the terms of the Preferred Securities sets forth certain general rules and provisions of the Preferred Securities to which any Prospectus Supplement may relate. Particular terms of the Preferred Securities offered by any Prospectus Supplement and the extent, if any, to which such general provisions may apply to the Preferred Securities so offered will be described in the Prospectus Supplement relating to such Preferred Securities. Each of the Proffitt's Trusts may issue, from time to time, only one series of Preferred Securities having terms described in the Prospectus Supplement relating thereto. The Declaration of each Proffitt's Trust authorizes the Regular Trustees of each Proffitt's Trust to issue on behalf of the Proffitt's Trust one series of Preferred Securities. Each Declaration will be qualified as an indenture under the Trust Indenture Act. The Property Trustee, The First National Bank of Chicago, an independent trustee, will act as indenture trustee for the Preferred Securities, to be issued by the Proffitt's Trusts, for the purposes of compliance with the provisions of the Trust Indenture Act. The Preferred Securities will have such terms, including distributions, redemption, voting, liquidation rights and such other preferred, deferred or other special rights or such restrictions as shall be set forth in the Declaration or made part of the Declaration by the Trust Indenture Act, and which will mirror the terms of the Subordinated Debt Securities held by the applicable Proffitt's Trust and as described in the Prospectus Supplement related thereto. Reference is made to the Prospectus Supplement relating to the Preferred Securities of the applicable Proffitt's Trust for specific terms, including (i) the distinctive designation of such Preferred Securities; (ii) the number of Preferred Securities issued; (iii) the annual distribution rate (or method of determining such rate) for Preferred Securities issued by the Proffitt's Trust and the date or dates upon which such distributions shall be payable; provided, however, that distributions on such Preferred Securities shall be payable on a periodic basis to holders of such Preferred Securities as of a record date in each period during which such Preferred Securities are outstanding; (iv) whether distributions on Preferred Securities shall be cumulative, and, in the case of Preferred Securities having such cumulative distribution rights, the date or dates or method of determining the date or dates from which distributions on Preferred Securities shall be cumulative; (v) the amount or amounts which shall be paid out of the assets to the holders of Preferred Securities upon voluntary or involuntary dissolution, winding-up or termination of the Proffitt's Trust; (vi) the obligation, if any, of the Proffitt's Trust to purchase or redeem Preferred Securities and the price or prices at which, the period or periods within which, and the terms and conditions upon which, Preferred Securities shall be purchased or redeemed, in whole or in part, pursuant to such obligation (with such redemption price to be determined through negotiations among the Company and the Underwriters based on, among other factors, redemption prices of securities similar to the Preferred Securities and market conditions generally); (vii) the voting rights, if any, of Preferred Securities in addition to those required by law, including the number of votes per Preferred Security and any requirement for the approval by the holders of Preferred Securities as a condition to specified action or amendments to the Declaration of the Proffitt's Trust; (viii) the terms and conditions, if any, upon which the Subordinated Debt Securities may be distributed to holders of Preferred Securities; (ix) if applicable, any securities exchange upon which the Preferred Securities shall be listed; (x) whether Preferred Securities are convertible or exchangeable, and if so, the securities or rights unto which Preferred Securities are convertible or exchangeable, and the terms and conditions upon which such conversions or exchanges will be effected; (xi) the amount by which amounts in respect of Preferred Securities may be calculated and any commodities, currencies, currency units or composite currencies, or indices, or value, rate or price, relevant to such calculation; and (xii) any other relevant rights, preferences, privileges, limitations or restrictions of Preferred Securities not inconsistent with the Declaration of the Proffitt's Trust or with applicable law. All Preferred Securities offered will be guaranteed by the Company to the extent set forth below under "Description of Trust Guarantees." Each Trust Guarantee of the Company, when taken together with the Company's obligations under the Subordinated Debt Securities and the relevant Supplemental Indenture, and its obligations under the applicable Declaration, including obligations to pay costs, expenses, debts and liabilities of the related Proffitt's Trust (other than with respect to the Trust Securities), would provide a full and unconditional guarantee, on a subordinated basis, of amounts due on Preferred Securities issued by such Proffitt's Trust. Certain United States federal income tax considerations applicable to any offering of Preferred Securities will be described in the Prospectus Supplement relating thereto. 34 In connection with the issuance of Preferred Securities, the applicable Proffitt's Trust will issue one series of Common Securities. Each Declaration authorizes the Regular Trustees to issue on behalf of each of the Proffitt's Trusts one series of Common Securities having such terms including distributions, redemption, voting, liquidation rights or such restrictions as shall be set forth therein. The terms of the Common Securities issued by the Proffitt's Trusts will be substantially identical to the terms of the Preferred Securities issued by the Proffitt's Trusts and the Common Securities will rank pari passu, and payments will be made thereon pro rata, with the Preferred Securities except that, upon an event of default under the Declaration, the rights of the holders of the Common Securities to payment in respect of distributions and payments upon liquidation, redemption and otherwise will be subordinated to the rights of the holders of the Preferred Securities. Except in certain limited circumstances, the Common Securities will also carry the right to vote to appoint, remove or replace any of the Proffitt's Trustees. All of the Common Securities of the Proffitt's Trusts will be directly or indirectly owned by the Company. ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED SECURITIES If an Event of Default under a Declaration occurs and is continuing, then the holders of Preferred Securities would rely on the enforcement by the Property Trustee of its rights as a holder of the applicable series of Subordinated Debt Securities against the Company. In addition, the holders of a majority in liquidation amount of the Preferred Securities will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee or to direct the exercise of any trust or power conferred upon the Property Trustee under the Declaration, including the right to direct the Property Trustee to exercise the remedies available to it as a holder of the Subordinated Debt Securities. If the Property Trustee fails to enforce its rights under the applicable series of Subordinated Debt Securities, a holder of Preferred Securities may, to the fullest extent permitted by law, institute a legal proceeding directly against the Company to enforce the Property Trustee's rights under the applicable series of Subordinated Debt Securities without first instituting any legal proceeding against the Property Trustee or any other person or entity. Notwithstanding the foregoing, if an Event of Default under the applicable Declaration has occurred and is continuing and such event is attributable to the failure of the Company to pay interest or principal on the applicable series of Subordinated Debt Securities on the date such interest or principal is otherwise payable (or in the case of redemption, on the redemption date), then a holder of Preferred Securities may directly institute a proceeding for enforcement of payment to such holder of the principal of or interest on the applicable series of Subordinated Debt Securities having a principal amount equal to the aggregate liquidation amount of the Preferred Securities of such holder (a "Direct Action") on or after the respective due date specified in the applicable series of Subordinated Debt Securities. In connection with such Direct Action, the Company will be subrogated to the right of such holder of Preferred Securities under the Declaration to the extent of any payment made by the Company to such holder of Preferred Securities in such Direct Action. DESCRIPTION OF TRUST GUARANTEES Set forth below is a summary of information concerning the Trust Guarantees which will be executed and delivered by the Company for the benefit of the holders from time to time of Preferred Securities. Each Trust Guarantee will be qualified as an indenture under the Trust Indenture Act. The First National Bank of Chicago, an independent trustee, will act as indenture trustee under each of the Trust Guarantees (the "Preferred Guarantee Trustee") for the purposes of compliance with the provisions of the Trust Indenture Act. The terms of the Trust Guarantees will be those set forth in the Trust Guarantee and those made part of the Trust Guarantee by the Trust Indenture Act. The following summary does not purport to be complete and is subject in all respects to the provisions of, and is qualified in its entirety by reference to, the form of Trust Guarantee, which is filed as an exhibit to the Registration Statement of which this Prospectus forms a part, and the Trust Indenture Act. Each Trust Guarantee will be held by the Preferred Guarantee Trustee for the benefit of the holders of the Preferred Securities of the applicable Proffitt's Trust. 35 GENERAL Pursuant to each Trust Guarantee, the Company will agree, to the extent set forth therein, to pay to the holders of the Preferred Securities, the Guarantee Payments (as defined herein) (to the extent not paid by the Proffitt's Trust), as and when due, regardless of any defense, right of set- off or counterclaim which the applicable Proffitt's Trust may have or assert. The following payments or distributions with respect to Preferred Securities issued by a Proffitt's Trust to the extent not paid by such Proffitt's Trust (the "Guarantee Payments"), will be subject to the Trust Guarantee (without duplication): (i) any accrued and unpaid distributions which are required to be paid on such Preferred Securities, to the extent such Proffitt's Trust shall have funds available therefore; (ii) the redemption price (the "Redemption Price") and all accrued and unpaid distributions to the date of redemption to the extent such Proffitt's Trust has funds available therefore with respect to any Preferred Securities called for redemption by such Proffitt's Trust; and (iii) upon a voluntary or involuntary dissolution, winding-up or termination of such Proffitt's Trust (other than in connection with the distribution of Subordinated Debt Securities to the holders of Preferred Securities or the redemption of all of the Preferred Securities), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid distributions on such Preferred Securities to the date of payment, to the extent such Proffitt's Trust has funds available therefore and (b) the amount of assets of such Proffitt's Trust remaining available for distribution to holders of such Preferred Securities in liquidation of such Proffitt's Trust. The Company's obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Company to the holders of Preferred Securities or by causing the applicable Proffitt's Trust to pay such amounts to such holders. Each Trust Guarantee will be a full and unconditional guarantee, on a subordinated basis, with respect to the Preferred Securities issued by the applicable Proffitt's Trust, but will not apply to any payment of distributions except to the extent such Proffitt's Trust shall have funds available therefor. If the Company does not make interest payments on the Subordinated Debt Securities purchased by the applicable Proffitt's Trust, such Proffitt's Trust will not pay distributions on the Preferred Securities issued by it and will not have funds available therefor. See "Description of the Proffitt's Debt Securities--Particular Terms of the Subordinated Debt Securities." Each Trust Guarantee, when taken together with the Company's obligations under the Subordinated Debt Securities, the Subordinated Indenture, and the Declaration will provide a full guarantee on a subordinated basis by the Company of payments due on the applicable Preferred Securities. The Company has also agreed separately to guarantee the obligations of each of the Proffitt's Trusts with respect to the Common Securities (the "Common Securities Guarantee") to the same extent as the Trust Guarantee, except that upon an event of default under the applicable Subordinated Indenture, holders of Preferred Securities shall have priority over holders of Common Securities with respect to distributions and payments on liquidation, redemption or otherwise. CERTAIN COVENANTS OF THE COMPANY Pursuant to each Trust Guarantee, the Company will covenant that, so long as any Preferred Securities remain outstanding, if there shall have occurred any event that would constitute an event of default under such Trust Guarantee or the applicable Declaration, then (a) the Company shall not declare or pay any dividend on, make any distributions with respect to, or redeem, purchase, acquire or make liquidation payment with respect to, any of its capital stock (other than (i) purchases or acquisitions of shares of Common Stock in connection with the satisfaction by the Company of its obligations under any employee benefit plans or the satisfaction by the Company of its obligations pursuant to any contract or security outstanding on the date of such event requiring the Company to purchase shares of the Company Common Stock, (ii) as a result of a reclassification of Proffitt's capital stock or the exchange or conversion of one class or series of Proffitt's capital stock for another class or series of Proffitt's capital stock or, (iii) the purchase of fractional interests in shares of Proffitt's capital stock pursuant to the conversion or exchange provisions of such Proffitt's capital stock or the security being converted or exchanged), (b) the Company shall not make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities (including guarantees) issued by the Company which rank pari passu with or junior to such Subordinated Debt Securities and (c) the Company shall not make any guarantee payments with respect to the foregoing (other than pursuant to such Trust Guarantee). 36 MODIFICATION OF THE TRUST GUARANTEES; ASSIGNMENT Except with respect to any changes which do not adversely affect the rights of holders of Preferred Securities in any material respect (in which case no vote will be required), each Trust Guarantee may be amended only with the prior approval of the holders of not less than a majority in liquidation amount of the outstanding Preferred Securities related thereto. The manner of obtaining any such approval of holders of such Preferred Securities will be as set forth in an accompanying Prospectus Supplement. All guarantees and agreements contained in each Trust Guarantee shall bind the successors, assigns, receivers, trustees and representatives of the Company and shall inure to the benefit of the holders of the related Preferred Securities then outstanding. TERMINATION Each Trust Guarantee will terminate as to the Preferred Securities issued by the applicable Proffitt's Trust (a) upon full payment of the Redemption Price of all Preferred Securities of such Proffitt's Trust, (b) upon distribution of the Subordinated Debt Securities held by such Proffitt's Trust to the holders of the Preferred Securities or (c) upon full payment of the amounts payable in accordance with the Declaration upon liquidation of such Proffitt's Trust. Each Trust Guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any holder of Preferred Securities must restore payment of any sums paid under such Preferred Securities or such Trust Guarantee. EVENTS OF DEFAULT An event of default under each of the Trust Guarantees will occur upon the failure of the Company to perform any of its payment or other obligations thereunder. The holders of a majority in liquidation amount of the Preferred Securities to which each Trust Guarantee relates have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Preferred Guarantee Trustee in respect of the Trust Guarantee or to direct the exercise of any trust or power conferred upon the Preferred Guarantee Trustee under such Trust Guarantee. If the Preferred Guarantee Trustee fails to enforce the applicable Trust Guarantee, any holder of Preferred Securities to which such Trust Guarantee relates may institute a legal proceeding directly against the Company to enforce such holder's rights under such Trust Guarantee, without first instituting a legal proceeding against the applicable Proffitt's Trust, such Preferred Guarantee Trustee or any other person or entity. Notwithstanding the foregoing, if the Company has failed to make a Guarantee Payment, a holder of Preferred Securities may directly institute a proceeding against the Company for enforcement of the applicable Trust Guarantee for such payment. The Company waives any right or remedy to require that any action be brought first against the applicable Proffitt's Trust or another person or entity before proceeding directly against the Company. STATUS OF THE TRUST GUARANTEES Each Trust Guarantee will constitute an unsecured obligation of the Company and will rank (i) subordinate and junior in right of payment to all other liabilities of the Company, except those made subordinate or pari passu by their terms; (ii) pari passu with the most senior preferred or preference stock now or hereafter issued by the Company and with any guarantee now or hereafter entered into by the Company in respect of any preferred or preference stock of any affiliate of the Company; and (iii) senior to the Company's Common Stock. The terms of the Preferred Securities provide that each holder of Preferred Securities by acceptance thereof agrees to the subordination provisions and other terms of the Trust Guarantee relating thereto. Each Trust Guarantee will constitute a guarantee of payment and not of collection (that is, the guaranteed party may institute a legal proceeding directly against the Company to enforce its rights under the guarantee without instituting a legal proceeding against any other person or entity). 37 INFORMATION CONCERNING THE PREFERRED GUARANTEE TRUSTEE The Preferred Guarantee Trustee, prior to the occurrence of a default with respect to the applicable Trust Guarantee, undertakes to perform only such duties as are specifically set forth in such Trust Guarantee and, after default, shall exercise the same degree of care as a prudent individual would exercise in the conduct of his or her own affairs. Subject to such provisions, the Preferred Guarantee Trustee is under no obligation to exercise any of the powers vested in it by the applicable Trust Guarantee at the request of any holder of Preferred Securities, unless offered reasonable indemnity against the costs, expenses and liabilities which might be incurred thereby; but the foregoing shall not relieve the Preferred Guarantee Trustee, upon the occurrence of an event of default under such Trust Guarantee, from exercising the rights and powers vested in it by such Trust Guarantee. GOVERNING LAW Each Trust Guarantee will be governed by and construed in accordance with the laws of the State of New York. EFFECT OF OBLIGATIONS UNDER THE SUBORDINATED DEBT SECURITIES AND THE TRUST GUARANTEE As set forth in the Declaration, the sole purpose of each of the Proffitt's Trusts is to issue the Trust Securities evidencing undivided beneficial interests in the assets of such Proffitt's Trust, and to invest the proceeds from such issuance and sale in the Subordinated Debt Securities. As long as payments of interest and other payments are made when due on the Subordinated Debt Securities, such payments will be sufficient to cover distributions and payments due on the Trust Securities because of the following factors: (i) the aggregate principal amount of Subordinated Debt Securities will be equal to the sum of the aggregate stated liquidation amount of the Trust Securities; (ii) the interest rate and the interest and other payment dates on the Subordinated Debt Securities will match the distribution rate and other payment dates for the Preferred Securities; (iii) the Company shall pay all, and none of the Proffitt's Trusts shall be obligated to pay, directly or indirectly, costs, expenses, debt, and obligations of the Proffitt's Trusts (other than with respect to the Trust Securities); and (iv) each of the Declarations further provides that the applicable Proffitt's Trustees shall not take or cause or permit the Proffitt's Trusts to, among other things, engage in any activity that is not consistent with the purposes of the Proffitt's Trusts. Payments of distributions (to the extent funds therefor are available) and other payments due on the Preferred Securities (to the extent funds therefor are available) are guaranteed on a subordinated basis by the Company as and to the extent set forth under "Description of Trust Guarantees." If the Company does not make interest payments on the Subordinated Debt Securities purchased by a Proffitt's Trust, it is expected that such Proffitt's Trust will not have sufficient funds to pay distributions on the Preferred Securities. None of the Trust Guarantee apply to any payment of distributions unless and until the applicable Proffitt's Trust has sufficient funds for the payment of such distributions. Each Trust Guarantee covers the payment of distributions and other payments on the Preferred Securities only if and to the extent that the Company has made a payment of interest or principal on the Subordinated Debt Securities held by the applicable Proffitt's Trust as its sole asset. Each Trust Guarantee, when taken together with the Company's obligations under the Subordinated Debt Securities and the Subordinated Indenture and its obligations under the applicable Declaration, including its obligations to pay costs, expenses, debts and liabilities of the related Proffitt's Trust (other than with respect to the Trust Securities), provide a full guarantee of payments due on the Preferred Securities. If the Company fails to make interest or other payments on the Subordinated Debt Securities when due (taking account of any Extension Period as defined in the Declarations), each Declaration provides a mechanism whereby the holders of the Preferred Securities, using the procedures described in "Description of Preferred Securities" and in any accompanying Prospectus Supplement, may direct the related Property Trustee to enforce 38 its rights under the Subordinated Debt Securities. If the Property Trustee fails to enforce its rights under the Subordinated Debt Securities, a holder of Preferred Securities may, to the fullest extent permitted by law, institute a legal proceeding against the Company to enforce the Property Trustee's rights under the Subordinated Debt Securities without first instituting any legal proceeding against the Property Trustee or any other person or entity. Notwithstanding the foregoing, if a Declaration Event of Default has occurred and is continuing and such event is attributable to the failure of the Company to pay interest or principal on the Subordinated Debt Securities on the date such interest or principal is otherwise payable (or in the case of redemption on the redemption date), then a holder of Preferred Securities may institute a Direct Action for payment on or after the respective due date specified in the Subordinated Debt Securities. In connection with such Direct Action, the Company will be subrogated to the rights of such holder of Preferred Securities under the Declaration to the extent of any payment made by the Company to such holder of Preferred Securities in such Direct Action. The Company, under each Trust Guarantee, acknowledges that the related Preferred Guarantee Trustee shall enforce such Trust Guarantee on behalf of the holders of the Preferred Securities. If the Company fails to make payments under any Trust Guarantee, the Trust Guarantee provides a mechanism whereby the holders of the Preferred Securities may direct the Preferred Guarantee Trustee to enforce its rights thereunder. Any holder of Preferred Securities may institute a legal proceeding directly against the Company to enforce the Preferred Guarantee Trustee's rights under the applicable Trust Guarantee without first instituting a legal proceeding against the applicable Proffitt's Trust, the Preferred Guarantee Trustee, or any other person or entity. The Company and each of the Proffitt's Trusts believe that the above mechanisms and obligations, taken together, provide a full and unconditional guarantee, on a subordinated basis, by the Company of payments due on the Preferred Securities. See "Description of Trust Guarantees--General." 39 PLAN OF DISTRIBUTION The Company and/or the Proffitt's Trusts may offer and sell the Offered Securities to or through underwriters or dealers, and also may offer and sell the Offered Securities directly to other purchasers or through designated agents. Any such underwriter or agent involved in the offer and sale of the Offered Securities will be named in the applicable Prospectus Supplement. The distribution of the Offered Securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. The Company and/or the Proffitt's Trusts also may, from time to time, authorize underwriters acting as the Company's agents to offer and sell the Offered Securities upon the terms and conditions set forth in any Prospectus Supplement. If so indicated in the applicable Prospectus Supplement, the Company will authorize dealers acting as the Company's agents to solicit offers by certain institutions to purchase Offered Securities from the Company at the public offering price set forth in such Prospectus Supplement pursuant to Stock Purchase Contracts providing for payment and delivery on the date or dates stated in such Prospectus Supplement. Each Stock Purchase Contract will be for an amount not less than, and the principal amount of Offered Securities sold pursuant to Stock Purchase Contracts shall not be less nor more than, the respective amounts stated in such Prospectus Supplement. Institutions with which Stock Purchase Contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but will in all cases be subject to the approval of the Company. Stock Purchase Contracts will not be subject to any conditions except (i) the purchase by an institution of the Offered Securities covered by its Stock Purchase Contract shall not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which such institution is subject and (ii) the Company shall have sold to such underwriters the total principal amount of the Offered Securities less the principal amount thereof covered by Stock Purchase Contracts. A commission indicated in the Prospectus Supplement will be paid to agents and underwriters soliciting purchases of Offered Securities pursuant to Stock Purchase Contracts accepted by the Company. Agents and underwriters shall have no responsibility in respect of the delivery or performance of Stock Purchase Contracts. In connection with the sale of Offered Securities, underwriters may receive compensation from the Company and/or the Proffitt's Trusts or from purchasers of the Offered Securities, for whom they may act as agents, in the form of discounts, concessions or commissions. Underwriters may sell the Offered Securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution of the Offered Securities may be deemed to be underwriters, and any discounts or commissions they receive from the Company and/or the Proffitt's Trusts, and any profit on the resale of the Offered Securities they realize may be deemed to be underwriting discounts and commissions under the Securities Act. Any such underwriter or agent will be identified, and any such compensation received from the Company and/or the Proffitt's Trusts will be described, in the applicable Prospectus Supplement. Unless otherwise specified in the related Prospectus Supplement, each series of the Offered Securities will be a new issue with no established trading market, other than the Common Stock and any series of Preferred Stock which are listed on the NYSE. Any Common Stock sold pursuant to a Prospectus Supplement will be listed on the NYSE, subject to official notice of issuance. The Company may elect to list any of the other Offered Securities on an exchange, but is not obligated to do so. It is possible that one or more underwriters may make a market in a series of the Offered Securities, but will not be obligated to do so and may discontinue any market making at any time without notice. Therefore, no assurance can be given as to the liquidity of the trading market for the Offered Securities. If dealers are utilized in the sale of the Offered Securities, the Company and/or the Proffitt's Trusts will sell such Offered Securities to the dealers as principals. The dealers may then resell such Offered Securities to the 40 public at varying prices to be determined by such dealers at the time of resale. The names of the dealers and the terms of the transaction will be set forth in the Prospectus Supplement relating thereto. Under agreements the Company may enter into, underwriters, dealers and agents who participate in the distribution of the Offered Securities may be entitled to indemnification by the Company and/or the Proffitt's Trusts against certain liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which such agents, dealers or underwriters may be required to make in respect thereof. Underwriters, dealers and agents may engage in transactions with, or perform services for the Company and/or the Proffitt's Trusts in the ordinary course of business. LEGAL OPINIONS Unless otherwise indicated in the applicable Prospectus Supplement, the legality and validity of the Offered Securities will be passed upon for the Company by Alston & Bird LLP, Atlanta, Georgia. Certain United States federal income taxation matters will be passed upon for the Company and the Proffitt's Trusts by Alston & Bird LLP, Atlanta, Georgia. Certain matters of Delaware law relating to the validity of the Preferred Securities will be passed upon for the Proffitt's Trusts and the Company by special Delaware counsel designated in the related Prospectus Supplement. EXPERTS The consolidated financial statements in the Company's Annual Report on Form 10-K as of January 31, 1998 and February 1, 1997 and for each of the three years in the period ended January 31, 1998, have been incorporated herein in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of that firm as experts in accounting and auditing. The supplemental consolidated financial statements included in the Company's Current Report on Form 8-K (filed with the Securities and Exchange Commission on September 23, 1998) as of January 31, 1998 and February 1, 1997 and for each of the three years in the period ended January 31, 1998, have been incorporated herein in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of that firm as experts in accounting and auditing. 41 PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The expenses in connection with the distribution of the Offered Securities are set forth in the following table. All amounts except the Securities and Exchange Commission registration fee are estimated. SEC Registration Fee............................................... $737,500 NYSE Listing Fee*.................................................. Blue Sky Fees and Expenses*........................................ Printing and Engraving Costs*...................................... Rating Agencies' Fees*............................................. Accounting Fees and Expenses*...................................... Legal Fees and Expenses*........................................... Trustee and Registrar Fees*........................................ Miscellaneous*..................................................... -------- Total*........................................................... $ ========
- -------- * To be filed by amendment or Rule 424 filing. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Registrant's Amended and Restated Charter and Amended and Restated Bylaws provide for indemnification of directors and officers of the Registrant to the full extent permitted by Tennessee law. Sections 48-18-501 et seq. of the Tennessee Business Corporation Act provide generally that a corporation may indemnify any person who was or is a part or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at its request in such capacity in another corporation or business association, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner 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, had no reasonable cause to believe his or her conduct was unlawful. In addition, pursuant to the authority of Tennessee law, the Charter of the Registrant also eliminates the monetary liability of directors to the fullest extent permitted by Tennessee law. The Declaration of the Proffitt's Trust provides that no Property Trustee or any of its Affiliates, or any officer, director, shareholder, member, partner, employee, representative or agent of the Property Trustee or the Delaware Trustee (each a "Fiduciary Indemnified Person"), and no Regular Trustee, Affiliate of any Regular Trustee, or any officer, director, shareholder, member, partner, employee, representative or agent of the Proffitt's Trust or any of its Affiliates (each a "Company Indemnified Person") shall be liable, responsible or accountable in damages or otherwise to the Proffitt's Trust or any officer, director, shareholder, member, partner, employee, representative or agent of the Proffitt's Trust or its Affiliates or to any holder of Preferred Securities for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Fiduciary Indemnified Person or Company Indemnified Person in good faith on behalf of the Proffitt's Trust and in a manner such Fiduciary Indemnified Person or Company Indemnified Person reasonably believed to be within the scope of the authority conferred on such Fiduciary Indemnified Person or Company Indemnified Person by such Declaration or by law, except that a Fiduciary Indemnified Person or Company Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Fiduciary Indemnified Person's or Company Indemnified Person's gross negligence or willful misconduct with respect to such acts or omissions. II-1 Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Act") may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Securities and Exchange Commission (the "Commission") such indemnification is against public policy as expressed in the Act and is therefore unenforceable. ITEM 16. EXHIBITS
EXHIBIT DESCRIPTION ------- ----------- 1.1 Form of Underwriting Agreement for Senior Debt Securities.* 1.2 Form of Underwriting Agreement for Subordinated Debt Securities.* 1.3 Form of Underwriting Agreement for Preferred Stock.* 1.4 Form of Underwriting Agreement for Depositary Shares.* 1.5 Form of Underwriting Agreement for Common Stock.* 1.6 Form of Underwriting Agreement for Stock Purchase Contracts or Stock Purchase Units.* 1.7 Form of Underwriting Agreement for Preferred Securities.* 3.1 Amended and Restated Charter of the Company (incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K (File No. 000-15907) dated September 23, 1998). 3.2 Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 4.2 to the Company's Current Report on Form 8-K (File No. 000-15907) dated September 23, 1998). 4.1 Form of Indenture for Senior Debt Securities.+ 4.1.1 Form of Indenture for Senior Debt Securities, with Guarantees. 4.2 Form of Indenture for Subordinated Debt Securities.+ 4.3 Form of Preferred Stock.* 4.4 Form of Preferred Security.* 4.5 Form of Senior Debt Security.* 4.6 Form of Subordinated Debt Security.* 4.7 Form of Warrant Agreement.* 4.8 Form of Stock Purchase Contract Agreement.* 4.9 Form of Pledge Agreement.* 4.10 Form of Preferred Securities Guarantee Agreement relating to Proffitt's Capital Trust I.+ 4.11 Form of Preferred Securities Guarantee Agreement relating to Proffitt's Capital Trust II, Proffitt's Capital Trust III, Proffitt's Capital Trust IV and Proffitt's Capital Trust V.+ 4.12 Certificate of Trust of Proffitt's Capital Trust I.+ 4.13 Certificate of Trust of Proffitt's Capital Trust II.+ 4.14 Certificate of Trust of Proffitt's Capital Trust III.+ 4.15 Certificate of Trust of Proffitt's Capital Trust IV.+ 4.16 Certificate of Trust of Proffitt's Capital Trust V.+ 4.17 Declaration of Trust of Proffitt's Capital Trust I.+ 4.18 Declaration of Trust of Proffitt's Capital Trust II.+ 4.19 Declaration of Trust of Proffitt's Capital Trust III.+ 4.20 Declaration of Trust of Proffitt's Capital Trust IV.+ 4.21 Declaration of Trust of Proffitt's Capital Trust V.+
II-2
EXHIBIT DESCRIPTION ------- ----------- 4.22 Form of Amended and Restated Declaration of Trust relating to Proffitt's Capital Trust I.+ 4.23 Form of Amended and Restated Declaration of Trust relating to Proffitt's Capital Trust II, Proffitt's Capital Trust III, Proffitt's Capital Trust IV and Proffitt's Capital Trust V.+ 4.24 Form of Supplemental Indenture to Indenture for Subordinated Debt Securities to be used in connection with the issuance of Subordinated Debt Securities related to Preferred Securities.* 5.1 Opinion of Alston & Bird LLP regarding legality of the Offered Securities.* 5.2 Opinion of special Delaware counsel regarding legality of the Preferred Securities.* 8.1 Opinion of Alston & Bird LLP as to certain federal income taxation matters.* 12.1 Statement regarding computation of ratio of earnings to fixed charges and preferred stock dividends. 23.1 Consent of PricewaterhouseCoopers LLP.+ 23.2 Consent of Alston & Bird LLP (included in Exhibit 5.1).* 23.3 Consent of Alston & Bird LLP (included in Exhibit 8.1).* 23.4 Consent of special Delaware counsel (included in Exhibit 5.2).* 24.1 Power of Attorney (included on signature page of this Registration Statement).+ 25.1 Statement of Eligibility and Qualification of Trustee on Form T-1 under Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Debt Securities.+ 25.1.1 Statement of Eligibility and Qualification of Trustee on Form T-1 under Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Debt Securities, with Guarantees. 25.2 Statement of Eligibility and Qualification of Trustee on Form T-1 under Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated Debt Securities.+ 25.3 Statement of Eligibility and Qualification of Trustee on Form T-1 under Trust Indenture Act of 1939, as amended, of the Trustee under the Declaration of Trust of Proffitt's Capital Trust I.+ 25.4 Statement of Eligibility and Qualification of Trustee on Form T-1 under Trust Indenture Act of 1939, as amended, of the Trustee under the Declaration of Trust of Proffitt's Capital Trust II.+ 25.5 Statement of Eligibility and Qualification of Trustee on Form T-1 under Trust Indenture Act of 1939, as amended, of the Trustee under the Declaration of Trust of Proffitt's Capital Trust III.+ 25.6 Statement of Eligibility and Qualification of Trustee on Form T-1 under Trust Indenture Act of 1939, as amended, of the Trustee under the Declaration of Trust of Proffitt's Capital Trust IV.+ 25.7 Statement of Eligibility and Qualification of Trustee on Form T-1 under Trust Indenture Act of 1939, as amended, of the Trustee under the Declaration of Trust of Proffitt's Capital Trust V.+ 25.8 Statement of Eligibility and Qualification of Trustee on Form T-1 under Trust Indenture Act of 1939, as amended, of the Trustee of the Preferred Securities Guarantee of the Company for the benefit of the holders of the Preferred Securities of Proffitt's Capital Trust I.+ 25.9 Statement of Eligibility and Qualification of Trustee on Form T-1 under Trust Indenture Act of 1939, as amended, of the Trustee of the Preferred Securities Guarantee of the Company for the benefit of the holders of the Preferred Securities of Proffitt's Capital Trust II.+ 25.10 Statement of Eligibility and Qualification of Trustee on Form T-1 under Trust Indenture Act of 1939, as amended, of the Trustee of the Preferred Securities Guarantee of the Company for the benefit of the holders of the Preferred Securities of Proffitt's Capital Trust III.+ 25.11 Statement of Eligibility and Qualification of Trustee on Form T-1 under Trust Indenture Act of 1939, as amended, of the Trustee of the Preferred Securities Guarantee of the Company for the benefit of the holders of the Preferred Securities of Proffitt's Capital Trust IV.+ 25.12 Statement of Eligibility and Qualification of Trustee on Form T-1 under Trust Indenture Act of 1939, as amended, of the Trustee of the Preferred Securities Guarantee of the Company for the benefit of the holders of the Preferred Securities of Proffitt's Capital Trust V.+
II-3 - -------- * To be filed by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of the offered securities. + Previously filed. ITEM 17. UNDERTAKINGS A. Rule 415 Offering. The undersigned Registrant hereby undertakes: (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 the foregoing, any increase or decrease in the 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; (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) and (1)(ii) do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in 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. B. Subsequent Documents Incorporated by Reference. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's 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. C. Indemnification of Officers, Directors and Controlling Persons. 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, II-4 the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. D. Rule 430A. The undersigned registrant hereby undertakes that: (1) For the purpose of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. E. Qualification of Trust Indentures The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act. 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 Birmingham, State of Alabama, as of September 22, 1998. SAKS INCORPORATED By: ______/s/ James S. Scully_______ Name: JAMES S. SCULLY Title: Vice President and Treasurer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ R. Brad Martin Chairman of the September 22, - ------------------------------------- Board and Chief 1998 R. BRAD MARTIN Executive Officer (Principal Executive Officer) /s/ Douglas E. Coltharp Executive Vice September 22, - ------------------------------------- President and Chief 1998 DOUGLAS E. COLTHARP Financial Officer (Principal Financial Officer) /s/ Donald E. Wright Senior Vice September 22, - ------------------------------------- President and 1998 DONALD E. WRIGHT Financial and Accounting (Principal Accounting Officer) /s/ Ronald deWaal Vice Chairman and September 22, - ------------------------------------- Director 1998 RONALD DEWAAL /s/ Bernard E. Bernstein Director September 22, - ------------------------------------- 1998 BERNARD E. BERNSTEIN /s/ Stanton J. Bluestone Director September 22, - ------------------------------------- 1998 STANTON J. BLUESTONE /s/ John W. Burden, III Director September 22, - ------------------------------------- 1998 JOHN W. BURDEN, III /s/ Edmond D. Cicala Director September 22, - ------------------------------------- 1998 EDMOND D. CICALA II-6 SIGNATURE TITLE DATE /s/ Julius Erving Director September 22, - ------------------------------------- 1998 JULIUS ERVING /s/ Michael S. Gross Director September 22, - ------------------------------------- 1998 MICHAEL S. GROSS /s/ Donald E. Hess Director September 22, - ------------------------------------- 1998 DONALD E. HESS /s/ G. David Hurd Director September 22, - ------------------------------------- 1998 G. DAVID HURD /s/ C. Warren Neel Director September 22, - ------------------------------------- 1998 C. WARREN NEEL /s/ Marguerite W. Sallee Director September 22, - ------------------------------------- 1998 MARGUERITE W. SALLEE /s/ Gerald Tsai, Jr. Director September 22, - ------------------------------------- 1998 GERALD TSAI, JR. II-7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Proffitt's Capital Trust I 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 Birmingham, State of Alabama, as of September 22, 1998. PROFFITT'S CAPITAL TRUST I By:SAKS INCORPORATED as Depositor /s/ James S. Scully By:__________________________________ Name: JAMES S. SCULLY Title: Vice President and Treasurer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Proffitt's Capital Trust II 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 Birmingham, State of Alabama, as of September 22, 1998. PROFFITT'S CAPITAL TRUST II By:SAKS INCORPORATED as Depositor /s/ James S. Scully By:__________________________________ Name: JAMES S. SCULLY Title: Vice President and Treasurer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Proffitt's Capital Trust III 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 Birmingham, State of Alabama, as of September 22, 1998. PROFFITT'S CAPITAL TRUST III By:SAKS INCORPORATED as Depositor /s/ James S. Scully By:__________________________________ Name: JAMES S. SCULLY Title: Vice President and Treasurer II-8 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Proffitt's Capital Trust IV 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 Birmingham, State of Alabama, as of September 22, 1998. PROFFITT'S CAPITAL TRUST IV By: SAKS INCORPORATED as Depositor /s/ James S. Scully By:__________________________________ Name: JAMES S. SCULLY Title: Vice President and Treasurer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Proffitt's Capital Trust V 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 Birmingham, State of Alabama, as of September 22, 1998. PROFFITT'S CAPITAL TRUST V By: SAKS INCORPORATED as Depositor /s/ James S. Scully By:__________________________________ Name: JAMES S. SCULLY Title: Vice President and Treasurer II-9 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 Birmingham, State of Alabama, as of September 22, 1998. CARSON PIRIE SCOTT & CO. /s/ Brian J. Martin By:__________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ Stanton J. Bluestone Director September 22, - ------------------------------------- 1998 STANTON J. BLUESTONE /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-10 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 Birmingham, State of Alabama, as of September 22, 1998. CPS DEPARTMENT STORES, INC. /s/ Brian J. Martin By:__________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-11 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 Birmingham, State of Alabama, as of September 22, 1998. CPS HOLDING CO. /s/ Brian J. Martin By: _________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-12 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 Birmingham, State of Alabama, as of September 22, 1998. G.R. HERGERBER'S, INC. /s/ Brian J. Martin By: _________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-13 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 Birmingham, State of Alabama, as of September 22, 1998. MCRAE'S OF ALABAMA, INC. /s/ Brian J. Martin By: ___________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------ Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------ Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal September 22, - ------------------------------------ Accounting Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------ 1998 JAMES A. COGGIN II-14 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 Birmingham, State of Alabama, as of September 22, 1998. MCRAE'S, INC. /s/ Brian J. Martin By: _________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-15 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 Birmingham, State of Alabama, as of September 22, 1998. MCRAE'S, INC., as Managing Partner of MCRAE'S STORES PARTNERSHIP /s/ Brian J. Martin By: _________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME DATE MCRAE'S, INC., as Managing Partner September 22, 1998 /s/ Brian J. Martin By: _____________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer II-16 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 Birmingham, State of Alabama, as of September 22, 1998. PARISIAN, INC. /s/ Brian J. Martin By: _________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-17 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 Birmingham, State of Alabama, as of September 22, 1998. SAKS & COMPANY /s/ Phillip B. Miller By: _________________________________ Name: PHILLIP B. MILLER Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Phillip B. Miller President, Chief September 22, - ------------------------------------- Executive Officer 1998 PHILLIP B. MILLER and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ Brian J. Martin Director September 22, - ------------------------------------- 1998 BRIAN J. MARTIN /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-18 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 Birmingham, State of Alabama, as of September 22, 1998. SAKS FIFTH AVENUE, ATLANTA, INC. /s/ Brian J. Martin By: _________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-19 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 Birmingham, State of Alabama, as of September 22, 1998. SAKS FIFTH AVENUE DISTRIBUTION COMPANY /s/ Brian J. Martin By: _________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-20 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 Birmingham, State of Alabama, as of September 22, 1998. SAKS FIFTH AVENUE OF MISSOURI, INC. /s/ Brian J. Martin By: ___________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------ Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Prinicipal September 22, - ------------------------------------ Financial Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal September 22, - ------------------------------------ Accounting Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------ 1998 JAMES A. COGGIN /s/ Charles J. Hansen Director September 22, - ------------------------------------ 1998 CHARLES J. HANSEN II-21 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 Birmingham, State of Alabama, as of September 22, 1998. SAKS FIFTH AVENUE OF OHIO, INC. /s/ Brian J. Martin By: _________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-22 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 Birmingham, State of Alabama, as of September 22, 1998. SAKS FIFTH AVENUE OF TEXAS, INC. /s/ Brian J. Martin By: _________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-23 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 Birmingham, State of Alabama, as of September 22, 1998. SAKS FIFTH AVENUE, INC. /s/ Brian J. Martin By: _________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-24 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 Birmingham, State of Alabama, as of September 22, 1998. SAKS FIFTH AVENUE - LOUISIANA, INC. /s/ Brian J. Martin By: _________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-25 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 Birmingham, State of Alabama, as of September 22, 1998. SAKS FIFTH AVENUE - STAMFORD, INC. /s/ Brian J. Martin By:__________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-26 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 Birmingham, State of Alabama, as of September 22, 1998. SAKS HOLDINGS, INC. /s/ Brian J. Martin By:__________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-27 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 Birmingham, State of Alabama, as of September 22, 1998. SAKS SPECIALTY STORES, INC. /s/ Brian J. Martin By:__________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-28 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 Birmingham, State of Alabama, as of September 22, 1998. S.F.A. DATA PROCESSING, INC. /s/ Brian J. Martin By:__________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-29 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 Birmingham, State of Alabama, as of September 22, 1998. SFA FOLIO COLLECTIONS, INC. /s/ Brian J. Martin By:__________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-30 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 Birmingham, State of Alabama, as of September 22, 1998. SFA REAL ESTATE COMPANY /s/ Brian J. Martin By:__________________________________ Name: BRIAN J. MARTIN Title: President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian J. Martin, Douglas E. Coltharp and James S. Scully, and each of them, his or her true and lawful attorney-in-fact and agent with full power of substitution for him or her in his or her name, place and stead, in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange Commission, grants unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: NAME TITLE DATE /s/ Brian J. Martin President, Chief September 22, - ------------------------------------- Executive Officer 1998 BRIAN J. MARTIN and Director /s/ Douglas E. Coltharp Principal Financial September 22, - ------------------------------------- Officer 1998 DOUGLAS E. COLTHARP /s/ Donald E. Wright Principal Accounting September 22, - ------------------------------------- Officer 1998 DONALD E. WRIGHT /s/ James A. Coggin Director September 22, - ------------------------------------- 1998 JAMES A. COGGIN II-31 EXHIBIT INDEX
EXHIBIT DESCRIPTION ------- ----------- 4.1.1 Form of Indenture for Senior Debt Securities, with Guarantees. 12.1 Statement regarding computation of ratio of earnings to fixed charges and preferred stock dividends. 25.1.1 Statement of Eligibility and Qualification of Trustee on Form T-1 under Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Debt Securities, with Guarantees.
EX-4.1.1 2 FORM OF INDENTURE Exhibit 4.1.1 ================================================================================ SAKS INCORPORATED, as Issuer THE SUBSIDIARY GUARANTOR(S) named herein, as Guarantor(s) and The First National Bank of Chicago, as Trustee _____________________ INDENTURE Dated as of , 1998 ____________________ SENIOR DEBT SECURITIES, WITH GUARANTEE(S) ================================================================================ TABLE OF CONTENTS Page PARTIES .............................................................. 1 RECITALS ............................................................. 1 ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 1.01. Definitions............................................ 2 Section 1.02. Other Definitions...................................... 12 Section 1.03. Rules of Construction.................................. 12 Section 1.04. Form of Documents Delivered to Trustee................. 13 Section 1.05. Acts of Holders........................................ 14 Section 1.06. Notices, etc., to the Trustee, the Company and the Guarantors............................ 14 Section 1.07. Notice to Holders; Waiver.............................. 15 Section 1.08. Conflict with Trust Indenture Act...................... 16 Section 1.09. Effect of Headings and Table of Contents............... 16 Section 1.10. Successors and Assigns................................. 16 Section 1.11. Separability Clause.................................... 16 Section 1.12. Benefits of Indenture.................................. 16 Section 1.13. Governing Law.......................................... 17 Section 1.14. No Recourse Against Others............................. 17 Section 1.15. Independence of Covenants.............................. 17 Section 1.16. Exhibits............................................... 17 Section 1.17. Counterparts........................................... 17 Section 1.18. Duplicate Originals.................................... 17 ARTICLE TWO NOTE AND GUARANTEE FORMS Section 2.01. Form and Dating........................................ 18 ARTICLE THREE THE NOTES Section 3.01. Title and Terms........................................ 18 Section 3.02. Registrar and Paying Agent............................. 19 -i- Page ---- Section 3.03. Execution and Authentication........................... 20 Section 3.04. Temporary Notes........................................ 22 Section 3.05. Transfer and Exchange.................................. 22 Section 3.06. Mutilated, Destroyed, Lost and Stolen Notes............ 23 Section 3.07. Payment of Interest; Interest Rights Preserved......... 24 Section 3.08. Persons Deemed Owners.................................. 26 Section 3.09. Cancellation........................................... 26 Section 3.10. Computation of Interest................................ 26 Section 3.11. Legal Holidays......................................... 26 Section 3.12. CUSIP and CINS Numbers................................. 27 Section 3.13. Paying Agent To Hold Money in Trust.................... 27 Section 3.14. Treasury Notes......................................... 28 Section 3.15. Deposits of Monies..................................... 28 Section 3.16. Book-Entry Provisions for Global Notes................. 28 ARTICLE FOUR DEFEASANCE OR COVENANT DEFEASANCE Section 4.01. Company's Option To Effect Defeasance or Covenant Defeasance................................... 30 Section 4.02. Defeasance and Discharge............................... 30 Section 4.03. Covenant Defeasance.................................... 31 Section 4.04. Conditions to Defeasance or Covenant Defeasance........ 31 Section 4.05. Deposited Money and U.S. Government Obligations To Be Held in Trust; Other Miscellaneous Provisions... 34 Section 4.06. Reinstatement.......................................... 35 ARTICLE FIVE REMEDIES Section 5.01. Events of Default...................................... 35 Section 5.02. Acceleration of Maturity; Rescission and Annulment..... 37 Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee............................ 39 Section 5.04. Trustee May File Proofs of Claims...................... 40 Section 5.05. Trustee May Enforce Claims Without Possession of Notes................................... 41 Section 5.06. Application of Money Collected......................... 41 Section 5.07. Limitation on Suits.................................... 42 -ii- Page ---- Section 5.08. Unconditional Right of Holders To Receive Principal, Premium and Interest....................... 42 Section 5.09. Restoration of Rights and Remedies..................... 43 Section 5.10. Rights and Remedies Cumulative......................... 43 Section 5.11. Delay or Omission Not Waiver........................... 43 Section 5.12. Control by Majority.................................... 43 Section 5.13. Waiver of Past Defaults................................ 44 Section 5.14. Undertaking for Costs.................................. 44 Section 5.15. Waiver of Stay, Extension or Usury Laws................ 45 Section 5.16. Unconditional Right of Holders To Receive Payment...... 45 ARTICLE SIX THE TRUSTEE Section 6.01. Certain Duties and Responsibilities.................... 46 Section 6.02. Notice of Defaults..................................... 47 Section 6.03. Certain Rights of Trustee.............................. 47 Section 6.04. Trustee Not Responsible for Recitals, Dispositions of Notes or Application of Proceeds Thereof...................................... 49 Section 6.05. Trustee and Agents May Hold Notes; Collections; Etc.... 49 Section 6.06. Money Held in Trust.................................... 49 Section 6.07. Compensation and Indemnification of Trustee and Its Prior Claim........................... 49 Section 6.08. Conflicting Interests.................................. 50 Section 6.09. Corporate Trustee Required; Eligibility................ 50 Section 6.10. Resignation and Removal; Appointment of Successor Trustee.................................. 51 Section 6.11. Acceptance of Appointment by Successor................. 53 Section 6.12. Merger, Conversion, Amalgamation, Consolidation or Succession to Business............................. 54 ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY Section 7.01. Preservation of Information; Company To Furnish Trustee Names and Addresses of Holders................ 54 Section 7.02. Communications of Holders.............................. 55 Section 7.03. Reports by Trustee..................................... 55 Section 7.04. Reports by Company and Each Guarantor.................. 56 -iii- Page ---- ARTICLE EIGHT CONSOLIDATION, MERGER, SALE OF ASSETS, ETC. Section 8.01. Company May Consolidate, etc., Only on Certain Terms... 56 ARTICLE NINE SUPPLEMENTAL INDENTURES AND WAIVERS Section 9.01. Supplemental Indentures, Agreements and Waivers Without Consent of Holders............................ 57 Section 9.02. Supplemental Indentures, Agreements and Waivers with Consent of Holders............................... 58 Section 9.03. Execution of Supplemental Indentures, Agreements and Waivers........................................... 60 Section 9.04. Effect of Supplemental Indentures...................... 60 Section 9.05. Conformity with Trust Indenture Act.................... 61 Section 9.06. Reference in Notes to Supplemental Indentures.......... 61 Section 9.07. Record Date............................................ 61 Section 9.08. Revocation and Effect of Consents...................... 61 ARTICLE TEN COVENANTS Section 10.01. Payment of Principal, Premium and Interest............. 62 Section 10.02. Maintenance of Office or Agency........................ 62 Section 10.03. Money for Note Payments To Be Held in Trust............ 63 Section 10.04. Corporate Existence.................................... 64 Section 10.05. Payment of Taxes and Other Claims...................... 65 Section 10.06. Maintenance of Properties.............................. 65 Section 10.07. Insurance.............................................. 65 Section 10.08. Books and Records...................................... 66 Section 10.09. Note Guarantees........................................ 66 Section 10.10. Provision of Financial Statements...................... 66 Section 10.11. Change of Control Triggering Event..................... 66 Section 10.12. Restrictions on Liens.................................. 69 Section 10.13. Statement by Officers as to Default.................... 71 Section 10.14. Restrictions on Sale and Leaseback Transactions........ 71 Section 10.15. Compliance Certificates and Opinions................... 73 Section 10.16. Additional Guarantors.................................. 73 -iv- Page ---- ARTICLE ELEVEN SATISFACTION AND DISCHARGE Section 11.01. Satisfaction and Discharge of Indenture................ 74 Section 11.02. Application of Trust Money............................. 75 ARTICLE TWELVE GUARANTEE OF NOTES Section 12.01. Unconditional Guarantee................................ 75 Section 12.02. Execution and Delivery of Note Guarantee............... 77 Section 12.03. Additional Guarantors.................................. 77 Section 12.04. Release of a Guarantor................................. 78 Section 12.05. Waiver of Subrogation.................................. 78 Section 12.06. Reliance on Judicial Order or Certificate of Liquidating Agent Regarding Dissolution, etc. of Guarantors......................................... 79 Section 12.07. Article Twelve Applicable to Paying Agents............. 79 Section 12.08. No Suspension of Remedies.............................. 80 Section 12.09. Limitation of Subsidiary Guarantor's Liability......... 80 Section 12.10. Contribution from Other Guarantors..................... 80 Section 12.11. Obligations Reinstated................................. 80 Section 12.12. No Obligation To Take Action Against the Company....... 81 Section 12.13. Dealing with the Company and Others.................... 81 -v- Exhibit A Form of Note Exhibit B Form of Legend for Book-Entry Securities Exhibit C Form of Note Guarantee -i- INDENTURE, dated as of , 1998, among Saks Incorporated, a corporation incorporated under the laws of the State of Tennessee (the "Company"), as issuer, the Subsidiary Guarantor(s) named herein ("Guarantors"), as guarantor(s), and The First National Bank of Chicago, as trustee (the "Trustee"). RECITALS The Company has duly authorized the creation of an issue of [ ]% Senior Notes due _____ (collectively, the "Notes"), of substantially the tenor and amount hereinafter set forth, and to provide therefor the Company has duly authorized the execution and delivery of this Indenture. The Guarantors have duly authorized their senior guarantee of the Notes and to provide therefor, the Guarantors have duly authorized the execution and delivery of this Indenture and their Note Guarantees (as hereinafter defined) under the terms set forth herein. All things necessary have been done to make the Notes and the Note Guarantees, when executed by the Company and the Guarantors, respectively, and authenticated and delivered hereunder and duly issued by the Company and the Guarantors, respectively, the valid obligations of the Company and the Guarantors and to make this Indenture a valid agreement of each of the Company, the Guarantors and the Trustee in accordance with the terms hereof. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders (as hereinafter defined) of the Notes, as follows: -2- ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 1.01. Definitions. "Accounts Receivable Subsidiary" means Younkers Credit Corporation, Proffitt's Credit Corporation, National Bank of the Great Lakes and any other present or future subsidiary (including any credit card bank) of the Company that is, directly or indirectly, wholly-owned by the Company (other than director qualifying shares) and organized for the purpose of and engaged in (i) originating purchasing, financing, serving and collecting accounts receivable obligations of customers of the Company or its subsidiaries, (ii) issuing and serving credit cards and financing accounts receivable obligations on behalf of the Company and its Subsidiaries, (iii) the sale or financing of such accounts receivable or interests therein and (iv) other activities incident thereto. "Attributable Debt" in respect of a Sale and Leaseback Transaction means, at the time of determination, the present value (discounted at the imputed rate of interest of such transaction determined in accordance with (GAAP)) of the obligation of the lessee for set rental payments during the remaining term of the lease included in such Sale and Leaseback Transaction (including any period for which such lease has been extended or may, at the option of the lessor, be extended). The term "net rental payments" under any lease for any period shall mean the sum of the rental and other payments required to be paid in such period by the lessee thereunder, not including any amounts required to be paid by such lessee (whether or not designated as rental or additional rental) on account of maintenance and repairs, insurance, taxes, assessment, water rates or similar charges or any amounts required to be paid by such lessee thereunder contingent upon the amount of sales, maintenance and repairs, insurance, taxes, assessments, water rates or similar charges. "Bankruptcy Law" means Title 11, United States Code or any similar federal or state law relating to bankruptcy, insolvency, receivership, winding- up, liquidation, reorganization or relief of debtors or the law of any other jurisdiction relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or relief of debtors or any amendment to, succession to or change in any such law. -3- "Bankruptcy Order" means any court order made in a proceeding pursuant to or within the meaning of any Bankruptcy Law, containing an adjudication of bankruptcy or insolvency, or providing for liquidation, receivership, winding- up, dissolution, "concordate" or reorganization, or appointing a Custodian of a debtor or of all or any substantial part of a debtor's property, or providing for the staying, arrangement, adjustment or composition of indebtedness or other relief of a debtor. "Board of Directors" means the board of directors of the Company or any Guarantor, as the case may be, or any duly authorized committee of such board. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or any Guarantor, as the case may be, to have been duly adopted by its respective Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in The City of New York, State of New York are authorized or obligated by law, regulation or executive order to close. "Capitalized Lease Obligations" means obligations created pursuant to leases which are required to be shown on the liability side of a balance sheet in accordance with GAAP. "Cash Equivalents" means, at any time, (i) any evidence of Indebtedness with a maturity of not more than one year issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof); (ii) certificates of deposit, Eurodollar time deposits or bankers' acceptances with a maturity of not more than one year of any financial institution that is a member of the Federal Reserve System having combined capital and surplus and undivided profits of not less than $500.0 million; (iii) commercial paper with a maturity of not more than one year issued by a corporation that is not an Affiliate of the Company organized under the laws of any state of the United States or the District of Columbia and rated at least A-1 by Standard & Poor's Ratings Group, at least P-1 by Moody's Investors Service, Inc. the equivalent of any such category of Standard & Poor's Ratings Group or Moody's Investor Services, Inc. used by -4- another nationally recognized Rating Agency; (iv) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (i) and (ii) above; and (v) transaction deposit accounts with domestic commercial banks. "Commission" means the Securities and Exchange Commission, as from time to time constituted, or if at any time after the execution of this Indenture such Commission is not existing and performing the applicable duties now assigned to it, then the body or bodies performing such duties at such time. "Company" means the person named as the "Company" in the first paragraph of this Indenture, until a successor person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor person. "Company Request" or "Company Order" means a written request or order signed in the name of the Company by any one of its Chairman of the Board, its Vice-Chairman, its Chief Executive Officer, its President or a Vice President, and by its Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer, and delivered to the Trustee. "Consolidated Net Tangible Assets" means the total amount of assets (less depreciation and valuation reserves and other reserves and items deductible from gross book value of specific asset accounts under GAAP) which under GAAP are included on a balance sheet of the Company and its Subsidiaries after deducting therefrom all goodwill, trade names, trademarks, patents, favorable lease rights, unamortized debt discount and expense and other like intangibles (other than leasehold costs and investments in so-called safe harbor leases), which in each such case would be so included on such balance sheet, net of accumulated amortization. "control" means, with respect to any specified person, the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of Voting Stock, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Corporate Trust Office" means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date of execution of this Indenture is located -5- at One First National Plaza, Suite 1026, Chicago, Illinois 60670-0126, Attention: Corporate Trust Administration except for purposes of Section 3.02 and 10.02. For purposes of such sections, such office is located at 14 Wall Street, 8th Floor, New York, New York 10005. "covenant defeasance" has the meaning set forth under "-- Defeasance or Covenant Defeasance of Indenture." "Custodian" means any receiver, interim receiver, receiver and manager, receiver-manager, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law or any other law respecting secured creditors and the enforcement of their security or any other person with like powers whether appointed judicially or out of court and whether pursuant to an interim or final appointment. "Default" means any event that is, or after notice or passage of time or both would be, an Event of Default. "defeasance" has the meaning set forth under" -- Defeasance or Covenant Defeasance of Indenture." "Depository" means The Depository Trust Company, its nominees and successors. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission thereunder. "Foreign Subsidiary" means a subsidiary of the Company not organized or existing under the laws of the United States, any state thereof, the district of Columbia or any territory thereof. "Funded Debt" means indebtedness which matures more than one year from the date of the computation thereof, or which is extendable or renewable at the sole option of the obligor so that it may become payable more than one year from -6- such date; provided, however, that Funded Debt shall not include (i) obligations created pursuant to leases, (ii) any Indebtedness or portion thereof maturing by its terms within one year from the time of any computation of the amount of outstanding Funded Debt unless such Indebtedness shall be extendable or renewable at the sole option of the obligor in such manner that it may become payable more than one year from such time, or (iii) any Indebtedness for the payment or redemption of which money in the necessary amount shall have deposited in trust either at or before the maturity date thereof. "GAAP" means generally accepted accounting principles in effect in the United States which are applicable as of the Issue Date and which are consistently applied for all applicable periods. "Global Notes" means one or more Notes. "guarantee" means, as applied to any obligation, (i) a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner, of any part or all of such obligation and (ii) an agreement, direct or indirect, contingent or otherwise, the practical effect of which is to assure in any way the payment or performance (or payment of damages in the event of non-performance) of all or any part of such obligation, including, without limiting the foregoing, the payment of amounts drawn down by letters of credit. A guarantee shall include, without limitation, any agreement to maintain or preserve any other Person's financial condition or to cause any other Person to achieve certain levels of operating results. "Guarantor" means (i) , and (ii) each other Subsidiary formed, created or acquired before or after the Issue Date required to become a Guarantor after the Issue Date pursuant to Section 10.16. "Holder" or "Noteholder" means a Person in whose name a Note is registered in the Note Register. "Indebtedness" of any person means indebtedness for borrowed money and indebtedness under purchases money Liens or other purchase money liens or conditional sales or similar title retention agreements, in each case where such indebtedness has been created, incurred, or assumed by such person to the extent -7- such indebtedness would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP, guarantees by such Person of such indebtedness, and indebtedness for borrowed money secured by any Lien, pledge or other lien or encumbrance upon property owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness. "Indenture" means this instrument as originally executed (including all exhibits and schedules hereto) and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof. "Indenture Obligations" means the obligations of the Company and any other obligor under this Indenture or under the Notes, to pay principal of, premium, if any, and interest on the Notes when due and payable, whether at maturity, by acceleration, call for redemption or repurchase or otherwise, and all other amounts due or to become due under or in connection with this Indenture, the Notes or the Note Guarantees and the performance of all other obligations to the Trustee (including, but not limited to, payment of all amounts due the Trustee under Section 6.07 hereof) and the Holders of the Notes under this Indenture, the Notes and the Note Guarantees, according to the terms thereof. "interest," when used with respect to any Note, means the amount of all interest accruing on such Note, including all additional interest payable on the Notes pursuant to the Registration Rights Agreement and all interest accruing subsequent to the occurrence of any events specified in Sections 5.01(h), (i) and (j) or which would have accrued but for any such event, whether or not such claims are allowable under applicable law. "Interest Payment Date" means, when used with respect to any Note, the Stated Maturity of an installment of interest on such Note, as set forth in such Note. "Investment" means and includes any investment in stock, evidences of Indebtedness, loans or advances, however made or acquired, but shall not include accounts receivable of the Company or of any subsidiary of the Company arising from transactions in the ordinary course of business. "Issue Date" means the original issue date of the Notes hereunder. -8- "Lien" means any Lien, security interest, pledge, lien or other encumbrance. "Maturity Date" means, with respect to any Note, the date on which any principal of such Note becomes due and payable as therein or herein provided, whether at the Stated Maturity with respect to such principal or by declaration of acceleration, call for redemption or purchase or otherwise. "Note Guarantee" means the guarantee by each of the Guarantors of the Notes and the Company's obligations under this Indenture. "Notes" shall have the meaning specified in the recitals of this Indenture. "Officer" means, with respect to the Company or any Guarantor, the Chairman of the Board, a Vice Chairman, the President, a Vice President, the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer. "Officers' Certificate" means a certificate signed by the Chairman of the Board, a Vice Chairman, the President or a Vice President, and by the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer, of the Company or any Guarantor, as the case may be, and delivered to the Trustee. "Operating Assets" means all merchandise, inventories, furniture and equipment (including all transportation and warehousing equipment, store racks and showcases but excluding office equipment and data processing equipment) owned by the Company or a Subsidiary. "Operating Property" means all real property and improvements thereon owned by the Company or a Subsidiary and constituting, without limitation, any store, warehouse, service center or distribution center wherever located; provided that such term shall not include any store, warehouse, service center or distribution center which the Company's Board of Directors declares by resolution not to be of material importance to the business of the Company and its Subsidiaries. Operating Property is treated as having been "acquired" on the day the Operating Property is placed in operation by the Company or a Subsidiary after the latter of (a) its acquisition from a third party, including a Subsidiary, (b) completion of its original construction or (c) completion of its substantial reconstruction, renovation, remodeling, expansion or improvement -9- (whether or not constituting an Operating property prior to such reconstruction, renovation, remodeling, expansion or improvement). "Opinion of Counsel" means a written opinion of counsel who may be counsel for the Company, a Guarantor, or the Trustee, and who shall be reasonably acceptable to the Trustee. "Outstanding" means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except: (i) Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation; (ii) Notes, or portions thereof, for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or any Guarantor or any Affiliate thereof) in trust or set aside and segregated in trust by the Company or any Guarantor or any Affiliate thereof (if the Company or such Guarantor or Affiliate shall act as Paying Agent) for the Holders of such Notes; provided, however, that if such Notes 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; (iii) Notes with respect to which the Company has effected defeasance or covenant defeasance as provided in Article Four, to the extent provided in Sections 4.02 and 4.03; and (iv) Notes in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a bona fide purchaser in whose hands the Notes are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Company, any Guarantor or any other obligor upon the Notes or any Affiliate of the Company, any Guarantor or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee -10- shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes that a Responsible Officer of the Trustee knows to be so owned shall be so disregarded. The Company shall notify the Trustee, in writing, when it repurchases or otherwise acquires Notes, of the aggregate principal amount of such Notes so repurchased or otherwise acquired. Notes 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 pledgee's right so to act with respect to such Notes and that the pledgee is not the Company, any Guarantor or any other obligor upon the Notes or any Affiliate of the Company, any Guarantor or such other obligor. If the Paying Agent holds, in its capacity as such, on any Maturity Date or on any optional redemption date money sufficient to pay all accrued interest and principal with respect to such Notes payable on that date and is not prohibited from paying such money to the Holders thereof pursuant to the terms of this Indenture, then on and after that date such Notes cease to be Outstanding and interest on them ceases to accrue. Notes may also cease to be outstanding to the extent expressly provided in Article Four. "Person" means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Predecessor Note" means, with respect to any particular Note, every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 3.06 hereof in exchange for a mutilated Note or in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note. "Regular Record Date" means the Regular Record Date specified in the Notes. "Responsible Officer" means, with respect to the Trustee, the chairman or vice chairman of the board of directors, the chairman or vice chairman of the executive committee of the board of directors, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller and any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by -11- any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer of the Trustee to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject. "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated by the Commission thereunder. "Senior Funded Debt" means all Funded Debt of the Company or any Person (except Funded Debt, the payment of which is subordinated to the payment of the Notes). "Special Record Date" means, with respect to the payment of any Defaulted Interest, a date fixed by the Trustee pursuant to Section 3.07 hereof. "Subsidiary" means any corporation of which at least a majority of the outstanding stock having voting power under ordinary circumstances to elect a majority of the board of directors of said corporation or business entity is at the timeowned or controlled by the Company, or by the Company and one or more Subsidiaries, or by any one or more Subsidiaries; provided, that, unless otherwise expressly stated, Subsidiary shall not include any Accounts Receivable Subsidiary or any Foreign Subsidiary. "Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as amended. "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" shall mean such successor Trustee. "U.S. Government Obligations" means securities that are (i) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the Stated Maturity of the Notes, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such U.S. Government Obligation -12- or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt, provided, however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository receipt. Section 1.02. Other Definitions.
Defined in Term Section "Act" 1.05 "Agent Member" 3.16 "Change of Control Date" 10.11 "Change of Control Offer" 10.11 "Change of Control Purchase Date" 10.11 "covenant defeasance" 4.03 "Defaulted Interest" 3.07 "defeasance" 4.02 "Defeased Notes" 4.01 "Event of Default" 5.01 "insolvent person" 4.04 "Note Register" 3.05 "Registrar" 3.02 "Paying Agent" or "Agent" 3.02 "Surviving Entity" 8.01
Section 1.03. Rules of Construction. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular; (b) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; -13- (c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; (d) 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; (e) all references to "$" or "dollars" refer to the lawful currency of the United States of America; and (f) the words "include," "included" and "including" as used herein are deemed in each case to be followed by the phrase "without limitation." Section 1.04. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such person, or that they be so certified or covered by only one document, but one such person may certify or give an opinion with respect to some matters and one or more other persons as to other matters, and any such person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company or any Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or any Guarantor stating that the information with respect to such factual matters is in the possession of the Company or any Guarantor, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other -14- instruments under this Indenture, they may, but need not, be consolidated, with proper identification of each matter covered therein, and form one instrument. Section 1.05. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution (as provided below in subsection (b) of this Section 1.05) of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01 hereof) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. (b) The fact and date of the execution by any person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient. (c) The ownership of Notes shall be proved by the Note Register. (d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note or the Holder of every Note issued upon the transfer thereof or in exchange therefor or in lieu thereof to the same extent as the original Holder, in respect of anything done, suffered or omitted to be done by the Trustee, any Paying Agent or the Company or any Guarantor in reliance thereon, whether or not notation of such action is made upon such Note. Section 1.06. Notices, etc., to the Trustee, the Company and the Guarantors. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to -15- be made upon, given or furnished to, or filed with: (a) the Trustee by any Holder or by the Company or any Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed, in writing, to or with the Trustee at One First National Plaza, Suite 1026, Chicago, Illinois 60670-0126, Attention: Corporate Trust Administration or at any other address previously furnished in writing to the Holders, the Company and the Guarantors by the Trustee; or (b) the Company or a Guarantor by the Trustee or by any Holder shall be sufficient for every purpose (except as otherwise expressly provided herein) hereunder if in writing and mailed, first-class postage prepaid, to the Company or such Guarantor addressed to it at Proffitt's, Inc., 750 Lakeshore Parkway, Birmingham, Alabama 35211, Attention: Chief Executive Officer, or at any other address previously furnished in writing to the Trustee by the Company. Section 1.07. Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise expressly provided herein) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at the address of such Holder as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice when mailed to a Holder in the aforesaid manner shall be conclusively deemed to have been received by such Holder whether or not actually received by such Holder. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case by reason of the suspension of regular mail service or by reason of any other cause, it shall be impracticable to mail notice of any event -16- as required by any provision of this Indenture, then any method of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice. Section 1.08. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with any provision of the Trust Indenture Act or another provision which is required or deemed to be included in this Indenture by any of the provisions of the Trust Indenture Act, such provision or requirement of the Trust Indenture Act shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or excluded, as the case may be. Section 1.09. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Section 1.10. Successors and Assigns. All covenants and agreements in this Indenture by the Company and the Guarantors, shall bind their respective successors and assigns, whether so expressed or not. Section 1.11. Separability Clause. In case any provision in this Indenture or in the Notes or any Note Guarantee issued pursuant hereto shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 1.12. Benefits of Indenture. Nothing in this Indenture or in the Notes or in any Note Guarantee issued pursuant hereto, express or implied, shall give to any person (other than the parties hereto and their successors hereunder, any Paying Agent and the -17- Holders) any benefit or any legal or equitable right, remedy or claim under this Indenture. Section 1.13. Governing Law. THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. Section 1.14. No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company or of a Guarantor shall not have any liability for any obligations of the Company or a Guarantor under the Notes, the Note Guarantee or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Section 1.15. Independence of Covenants. All covenants and agreements in this Indenture shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or be otherwise within the limitations of, another covenant shall not avoid the occurrence of a Default if such action is taken or condition exists. Section 1.16. Exhibits. All exhibits attached hereto are by this reference made a part hereof with the same effect as if herein set forth in full. Section 1.17. Counterparts. This Indenture may be executed in any number of counterparts and by telecopier, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Section 1.18. Duplicate Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. -18- ARTICLE TWO NOTE AND GUARANTEE FORMS Section 2.01. Form and Dating. The Notes and the Trustee's certificate of authentication with respect thereto and the Note Guarantees shall be in substantially the forms set forth, or referenced, in Exhibit A and Exhibit C, respectively, annexed hereto, 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 any applicable law or with the rules of the Depository, any clearing agency or any securities exchange or as may, consistently herewith, be determined by the officers executing such Notes and Note Guarantees, as evidenced by their execution thereof. The definitive Notes and Note Guarantees shall be printed, typewritten, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which the Notes and such Note Guarantees may be listed, all as determined by the officers executing such Notes and Note Guarantees, as evidenced by their execution of such Notes and Note Guarantees. Each Note shall be dated the date of its issuance and shall show the date of its authentication. The terms and provisions contained in the Notes shall constitute, and are expressly made, a part of this Indenture. ARTICLE THREE THE NOTES Section 3.01. Title and Terms. The aggregate principal amount of Notes which may be authenticated and delivered under this Indenture is limited to $ ,000,000 in aggregate principal amount of Notes, except for Notes authenticated and delivered upon registration -19- of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 3.03, 3.04, 3.05, 3.06, 9.06 or 10.11. The final Stated Maturity of the Senior Notes due shall be , . The Senior Notes due shall bear interest at the rate of % per annum, the Senior Notes due 2005 shall bear interest at the rate of [ ]% per annum from the Issue Date or from the most recent Interest Payment Date to which interest has been paid, as the case may be, payable semi-annually thereafter on in each year, commencing on , 199[ ], to the Holders of record at the close of business on the immediately preceding such Interest Payment Dates, until the principal thereof is paid or duly provided for. Interest on any overdue principal, interest (to the extent lawful) or premium, if any, shall be payable on demand. The Notes shall be not be redeemable at the option of the Company at any time. At the election of the Company, the entire Indebtedness on the Notes or certain of the Company's obligations and covenants and certain Events of Default thereunder may be defeased as provided in Article Four. Section 3.02. Registrar and Paying Agent. The Company shall maintain an office or agency (which shall be located in the Borough of Manhattan in The City of New York, State of New York) where Notes may be presented for registration of transfer or for exchange (the "Registrar"), an office or agency (which shall be located in the Borough of Manhattan in The City of New York, State of New York) where Notes may be presented for payment (the "Paying Agent" or "Agent") and an office or agency where notices and demands to or upon the Company in respect of the Notes, the Note Guarantees and this Indenture may be served. The Registrar shall keep a register of the Notes and of their transfer and exchange. The Company may have one or more co-registrars and one or more additional paying agents. The term "Paying Agent" or "Agent" includes any additional paying agent. The Company may act as its own Paying Agent, except for the purposes of payments on account of principal on the Notes pursuant to Section 10.11 hereof. -20- The Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture, which shall incorporate the provisions of the Trust Indenture Act. The agreement shall implement the provisions of this Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address of any such Agent. If the Company fails to maintain a Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as such and shall be entitled to appropriate compensation in accordance with Section 6.07 hereof. The Company initially appoints the Trustee as the Registrar and Paying Agent and agent for service of notices and demands in connection with the Notes. Section 3.03. Execution and Authentication. The Notes and the Trustee's certificate of authentication shall be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. The Company shall approve the form of the Notes and any notation, legend or endorsement thereon. Each Note shall be dated the date of issuance and shall show the date of its authentication. Each Note shall have an executed Note Guarantee from each of the Guarantors endorsed thereon substantially in the form of Exhibit C hereto. The terms and provisions contained in the Notes annexed hereto as Exhibits A shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. The Notes shall be issued initially in the form of one or more Global Notes, substantially in the form set forth in Exhibit A, deposited with the Trustee, as custodian for the Depository, duly executed by the Company (and having an executed Note Guarantee from each of the Guarantors endorsed thereon) and authenticated by the Trustee as hereinafter provided and shall bear the legend set forth in Exhibit B. The aggregate principal amount of the Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depository, as hereinafter provided. -21- Two Officers, or an Officer and an Assistant Secretary, shall sign, or one Officer shall sign, and one Officer or an Assistant Secretary (each of whom shall, in each case, have been duly authorized by all requisite corporate actions) shall attest to, the Notes for the Company, and the Note Guarantees for the Guarantors, by manual or facsimile signature. If an Officer or Assistant Secretary whose signature is on a Note or a Note Guarantee, as the case may be, was an Officer or Assistant Secretary at the time of such execution but no longer holds that office or position at the time the Trustee authenticates the Note, the Note shall nevertheless be valid. The Trustee shall authenticate the Senior Notes due for original issue in an aggregate principal amount not to exceed $[ ],000,000 upon a written order of the Company in the form of an Officers' Certificate of the Company. Each such written order shall specify the amount of Notes to be authenticated and the date on which the Notes are to be authenticated and such other information as the Trustee may reasonably request. The aggregate principal amount of Notes outstanding at any time may not exceed $[ ],000,000, except as provided in Section 3.06. Notwithstanding the foregoing, all Notes issued under this Indenture shall vote and consent together on all matters (as to which any of such Notes may vote or consent) as one class and no series of Notes will have the right to vote or consent as a separate class on any matter. The Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate Notes. Unless otherwise provided in the appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company and Affiliates of the Company. The Notes shall be issuable in fully registered form only, without coupons, in denominations of $1,000 and any integral multiple thereof. -22- Section 3.04. Temporary Notes. Until definitive Notes are prepared and ready for delivery, the Company may execute and upon a Company Order the Trustee shall authenticate and deliver temporary Notes. Temporary Notes shall be substantially in the form of definitive Notes, in any authorized denominations, but may have variations that the Company reasonably considers appropriate for temporary Notes as conclusively evidenced by the Company's execution of such temporary Notes. If temporary Notes are issued, the Company will cause definitive Notes to be prepared without unreasonable delay. After the preparation of definitive Notes, the temporary Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Company designated for such purpose pursuant to Section 10.02, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Notes of like tenor and of authorized denominations. Until so exchanged the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as definitive Notes. Section 3.05. Transfer and Exchange. The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency designated pursuant to Section 10.02 being sometimes referred to herein as the "Note Register") in which, subject to such reasonable regulations as the Registrar may prescribe, the Company shall provide for the registration of Notes and of transfers and exchanges of Notes. The Trustee is hereby initially appointed Registrar for the purpose of registering Notes and transfers of Notes as herein provided. When Notes are presented to the Registrar or a co-Registrar with a request from the Holder of such Notes to register the transfer or exchange for an equal principal amount of Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested; provided, however, that every Note presented or surrendered for registration of transfer or exchange shall be duly endorsed or be accompanied by a written instrument of transfer or exchange in form satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized -23- in writing. Whenever any Notes are so presented for exchange, the Company and any Guarantor shall execute, and the Trustee shall authenticate and deliver, the Notes and Note Guarantees which the Holder making the exchange is entitled to receive. No service charge shall be made to the Noteholder for any registration of transfer or exchange. The Company may require from the Noteholder payment of a sum sufficient to cover any transfer taxes or other governmental charge that may be imposed in relation to a transfer or exchange, but this provision shall not apply to any exchange pursuant to Section 10.11 or 9.06 hereof (in which events the Company will be responsible for the payment of all such taxes which arise solely as a result of the transfer or exchange and do not depend on the tax status of the Holder). The Trustee shall not be required to exchange or register the transfer of any Note for a period of 15 days immediately preceding the first mailing of notice of redemption of Notes to be redeemed or of any Note selected, called or being called for redemption except, in the case of any Note where public notice has been given that such Note is to be redeemed in part, the portion thereof not to be redeemed. All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Company, evidencing the same Indebtedness, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange. Any Holder of a beneficial interest in a Global Note shall, by acceptance of such Global Note, agree that transfers of beneficial interests in such Global Notes may be effected only through a book-entry system maintained by the Holder of such Global Note (or its agent), and that ownership of a beneficial interest in the Note shall be required to be reflected in a book- entry system. Section 3.06. Mutilated, Destroyed, Lost and Stolen Notes. If a mutilated Note is surrendered to the Trustee or if the Holder of a Note of any series claims that the Note has been lost, destroyed or wrongfully taken, the Company shall execute and upon a Company Order, the Trustee shall authenticate and deliver a replacement Note of like tenor and principal amount, bearing a number not contemporaneously outstanding, and the Guarantors shall execute a replacement Note Guarantee, if the Holder of such Note furnishes to the Company and to the Trustee evidence reasonably acceptable to them of the ownership and the destruction, loss or theft of such Note and an indemnity bond -24- shall be posted by such Holder, sufficient in the judgment of the Company or the Trustee, as the case may be, to protect the Company, the Trustee or any Agent from any loss that any of them may suffer if such Note is replaced. The Company may charge such Holder for the Company's and any Guarantor's expenses in replacing such Note (including (i) expenses of the Trustee charged to the Company and (ii) any tax or other governmental charge that may be imposed) and the Trustee may charge the Company for the Trustee's expenses in replacing such Note. Every replacement Note and Note Guarantee issued pursuant to this Section in lieu of any destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company and each Guarantor, whether or not the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes. Section 3.07. Payment of Interest; Interest Rights Preserved. Interest on any Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest. Any interest on any Note which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date and interest on such defaulted interest at the then applicable interest rate borne by the Notes, to the extent lawful (such defaulted interest and interest thereon herein collectively called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the Regular Record Date; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in subsection (a) or (b) below: (a) The Company may elect to make payment of any Defaulted Interest to the persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the -25- following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the persons entitled to such Defaulted Interest as provided in this subsection (a). Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company in writing of such Special Record Date. In the name and at the expense of the Company, the Trustee shall 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 at its address as it appears in the Note Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the persons in whose names the Notes (or their respective Predecessor Notes) are registered on such Special Record Date and shall no longer be payable pursuant to the following subsection (b). (b) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Company to the Trustee of the proposed payment pursuant to this subsection (b), such payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note. -26- Section 3.08. Persons Deemed Owners. Prior to and at the time of due presentment for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name any Note is registered in the Note Register as the owner of such Note for the purpose of receiving payment of principal of, premium, if any, and (subject to Section 3.07) interest on such Note and for all other purposes whatsoever, whether or not such Note shall be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. Section 3.09. Cancellation. All Notes surrendered for payment, redemption, registration of transfer or exchange shall be delivered to the Trustee and, if not already canceled, shall be promptly canceled by it. The Company and any Guarantor may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Company or such Guarantor may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly canceled by the Trustee. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer or exchange, redemption or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation. No Notes shall be authenticated in lieu of or in exchange for any Notes canceled as provided in this Section 3.09, except as expressly permitted by this Indenture. All canceled Notes held by the Trustee shall be destroyed and certification of their destruction delivered to the Company unless by a Company Order the Company shall direct that the canceled Notes be returned to it. The Trustee shall provide the Company a list of all Notes that have been canceled from time to time as requested by the Company. Section 3.10. Computation of Interest. Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months and, in the case of a partial month, the actual number of days elapsed. Section 3.11. Legal Holidays. In any case where any Interest Payment Date, Redemption Date, date established for the payment of Defaulted Interest or Stated Maturity of any Note -27- shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Notes) payment of principal, premium, if any, or interest need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, Redemption Date, date established for the payment of Defaulted Interest or at the Stated Maturity, as the case may be. In such event, no interest shall accrue with respect to such payment for the period from and after such Interest Payment Date, Redemption Date, date established for the payment of Defaulted Interest or Stated Maturity, as the case may be, to the next succeeding Business Day and, with respect to any Interest Payment Date, interest for the period from and after such Interest Payment Date shall accrue with respect to the next succeeding Interest Payment Date. Section 3.12. CUSIP and CINS Numbers. The Company in issuing the Notes may use "CUSIP" and "CINS" numbers (if then generally in use), and if so, the Trustee shall use the CUSIP or CINS numbers, as the case may be, in notices of redemption or exchange as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP or CINS number, as the case may be, printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee in writing of any change in the CUSIP or CINS number of any type of Notes. Section 3.13. Paying Agent To Hold Money in Trust. Each Paying Agent shall hold in trust for the benefit of the Noteholders or the Trustee all money held by the Paying Agent for the payment of principal of, premium, if any, or interest on the Notes, and shall notify the Trustee of any default by the Company in making any such payment. Money held in trust by the Paying Agent need not be segregated except as required by law and in no event shall the Paying Agent be liable for any interest on any money received by it hereunder. The Company at any time may require the Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed and the Trustee may at any time during the continuance of any Event of Default, upon a Company Order to the Paying Agent, require such Paying Agent to pay forthwith all money so held by it to the Trustee and to account for any funds disbursed. Upon making such payment, the Paying Agent shall have no further liability for the money delivered to the Trustee. -28- Section 3.14. Treasury Notes. In determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver, consent or notice, Notes owned by the Company or an Affiliate of the Company shall be considered as though they are not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which the Trustee actually knows are so owned shall be so considered. The Company shall notify the Trustee, in writing, when it or any of its Affiliates repurchases or otherwise acquires Notes, of the aggregate principal amount of such Notes so repurchased or otherwise acquired. Section 3.15. Deposits of Monies. Prior to 12:00 p.m. noon New York City time on each Interest Payment Date, maturity date and Change of Control Purchase Date, the Company shall have deposited with the Paying Agent in immediately available funds money sufficient to make cash payments, if any, due on such Interest Payment Date, maturity date and Change of Control Purchase Date, as the case may be, in a timely manner which permits the Paying Agent to remit payment to the Holders on such Interest Payment Date, maturity date and Change of Control Purchase Date, as the case may be. Section 3.16. Book-Entry Provisions for Global Notes. (a) The Global Notes initially shall (i) be registered in the name of the Depository or the nominee of such Depository, (ii) be delivered to the Trustee as custodian for such Depository and (iii) bear legends as set forth in Exhibit B. Members of, or participants in, the Depository ("Agent Members") shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depository, or the Trustee as its custodian, or under the Global Note, and the Depository may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other -29- authorization furnished by the Depository or impair, as between the Depository and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Note. (b) Transfers of Global Notes shall be limited to transfers in whole, but not in part, to the Depository, its successors or their respective nominees. Interests of beneficial owners in the Global Notes may be transferred or exchanged for Physical Notes in accordance with the rules and procedures of the Depository. In addition, Physical Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in Global Notes if (i) the Depository notifies the Company that it is unwilling or unable to continue as Depository for any Global Note, or that it will cease to be a "Clearing Agency" under the Exchange Act, and in either case a successor Depository is not appointed by the Company within 90 days of such notice or (ii) an Event of Default has occurred and is continuing and the Registrar has received a written request from the Depository to issue Physical Notes. (c) In connection with any transfer or exchange of a portion of the beneficial interest in any Global Note to beneficial owners pursuant to paragraph (b), the Registrar shall (if one or more Physical Notes are to be issued) reflect on its books and records the date and a decrease in the principal amount of the Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Physical Notes of like tenor and principal amount of authorized denominations. (d) In connection with the transfer of Global Notes as an entirety to beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depository in exchange for its beneficial interest in the Global Notes, an equal aggregate principal amount at maturity of Physical Notes of like tenor of authorized denominations. (e) Any Physical Note constituting a Restricted Note delivered in exchange for an interest in a Global Note pursuant to subparagraph (b), (c) -30- or (d) of this Section 3.16 shall, except as otherwise provided by Section 3.17, bear the Private Placement Legend. (f) The Holder of any Global Note may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes. ARTICLE FOUR DEFEASANCE OR COVENANT DEFEASANCE Section 4.01. Company's Option To Effect Defeasance or Covenant Defeasance. The Company may, at its option by Board Resolution, at any time, with respect to the Notes, elect to have either Section 4.02 or Section 4.03 be applied to all of the Outstanding Notes (the "Defeased Notes"), upon compliance with the conditions set forth below in this Article Four. Section 4.02. Defeasance and Discharge. Upon the Company's exercise under Section 4.01 of the option applicable to this Section 4.02, the Company and each Guarantor shall be deemed to have been discharged from their obligations with respect to the Defeased Notes and the related Note Guarantees on the date the conditions set forth below are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Defeased Notes, which shall thereafter be deemed to be "Outstanding" only for the purposes of Section 4.05 and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations under such Notes and this Indenture insofar as such Notes are concerned (and the Trustee, at the expense of the Company, and, upon Company Request, shall execute proper instruments acknowledging the same), except for the following, which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Defeased Notes to receive, solely from the trust fund described in Section 4.04 and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due, (b) the Company's obligations with -31- respect to such Defeased Notes under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder, including, without limitation, the Trustee's rights under Section 6.07, and (d) this Article Four. Subject to compliance with this Article Four, the Company may exercise its option under this Section 4.02 notwithstanding the prior exercise of its option under Section 4.03 with respect to the Notes. Section 4.03. Covenant Defeasance. Upon the Company's exercise under Section 4.01 of the option applicable to this Section 4.03, the Company and each Guarantor shall be released from their obligations under any covenant or provision contained in Sections 10.06 through 10.22 and the provisions of Articles Eight shall not apply, with respect to the Defeased Notes, on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"), and the Defeased Notes shall thereafter be deemed not to be "Outstanding" for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "Outstanding" for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to the Defeased Notes, the Company and each Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section or Article, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or Article or by reason of any reference in any such Section or Article to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 5.01(c) or (d), but, except as specified above, the remainder of this Indenture and such Defeased Notes shall be unaffected thereby. Section 4.04. Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to application of either Section 4.02 or Section 4.03 to the Defeased Notes: (1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 6.09 who shall agree to comply with the provisions of this Article Four applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and -32- dedicated solely to, the benefit of the Holders of such Notes, (a) cash in an amount, or (b) U.S. Government Obligations which through the scheduled payment of principal, premium, if any, and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (c) a combination thereof, in any such case, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of, premium, if any, and interest on the Defeased Notes at the Stated Maturity of such principal or installment of principal, premium, if any, or interest; provided, however, that the Trustee shall have been irrevocably instructed to apply such cash or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes; (2) No Default shall have occurred and be continuing on the date of such deposit or, insofar as Sections 5.01(h), (i) or (j) are concerned, at any time during the period ending on the ninety-first day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period); (3) Neither the Company nor any Subsidiary of the Company is an "insolvent person" within the meaning of any applicable Bankruptcy Law on the date of such deposit or at any time during the period ending on the ninety-first day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period); (4) Such defeasance or covenant defeasance shall not cause the Trustee for the Notes to have a conflicting interest in violation of Section 6.08 and for purposes of the Trust Indenture Act with respect to any securities of the Company or any Guarantor; (5) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any Guarantor is a party or by which it is bound; -33- (6) In the case of an election under Section 4.02, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date hereof, 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 Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred; (7) In the case of an election under Section 4.03, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred; (8) The Company shall have delivered to the Trustee, an Opinion of Counsel to the effect that, immediately following the ninety-first day after the deposit, the trust funds established pursuant to this Article will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally under any applicable U.S. Federal or state law; (9) The Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit made by the Company pursuant to its election under Section 4.02 or 4.03 was not made by the Company with the intent of preferring the Holders or any Guarantor over the other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and (10) The Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that (i) all conditions precedent (other than conditions requiring the passage of time) provided for relating to either the defeasance under Section 4.02 or the covenant defeasance under Section 4.03 (as the case may be) have been complied with -34- as contemplated by this Section 4.04 and (ii) if any other Indebtedness of the Company or any Guarantor shall then be outstanding or committed, such defeasance or covenant defeasance will not violate the provisions of the agreements or instruments evidencing such Indebtedness. Opinions required to be delivered under this Section may have such qualifications as are customary for opinions of the type required and reasonably acceptable to the Trustee. Section 4.05. Deposited Money and U.S. Government Obligations To Be Held in Trust; Other Miscellaneous Provisions. Subject to the proviso of the last paragraph of Section 10.03, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.05, the "Trustee") pursuant to Section 4.04 in respect of the Defeased Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee and hold it harmless against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 4.04 or the principal, premium, if any, and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Defeased Notes. Anything in this Article Four to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 4.04 which, in the opinion of an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance. -35- Section 4.06. Reinstatement. If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 4.02 or 4.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Company and of any Guarantor under this Indenture, the Notes and the Note Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 4.02 or 4.03, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money and U.S. Government Obligations in accordance with Section 4.02 or 4.03, as the case may be; provided, however, that if the Company makes any payment of principal, premium, if any, or interest on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money and U.S. Government Obligations held by the Trustee or Paying Agent. ARTICLE FIVE REMEDIES Section 5.01. Events of Default. "Event of Default", wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (a) default in the payment of any interest on the Notes when due and payable, continued for 30 days or more; or (b) default in payment of all or any part of principal of or premium, if any; or (c) the Company or any Guarantor fails to perform or observe any other term, covenant or agreement contained in the Notes, any Note Guarantee or this Indenture (other than a default specified in (a), (b) or (c) above) for a period of 60 days after written notice of such failure -36- requiring the Company to remedy the same and stating that such notice is a "Notice of Default" hereunder shall have been given (x) to the Company by the Trustee or (y) to the Company and the Trustee by the Holders of at least __% in aggregate principal amount of the Notes then Outstanding; or (d) default or defaults under one or more agreements, indentures or instruments under which the Company or any Subsidiary then has outstanding Indebtedness in excess of $__________ individually or in the aggregate and either (i) such Indebtedness is already due and payable in full or (ii) such default or defaults results in the acceleration of the maturity of such Indebtedness if such acceleration is not discharged within 10 days after written notice of such acceleration; or (e) any Note Guarantee ceases to be in full force and effect or is declared null and void or any Guarantor denies that it has any further liability under any Note Guarantee, or gives notice to such effect (other than by reason of the termination of this Indenture or the release of any such Note Guarantee in accordance with Section 12.04 hereof) and such condition shall have continued for a period of 30 days after written notice of such condition requiring the same to be remedied and stating that such notice is a "Notice of Default" hereunder shall have been given (x) to the Company by the Trustee or (y) to the Company and the Trustee by the Holders of at least __% in aggregate principal amount of the Notes then Outstanding; or (f) the Company or any Subsidiary of the Company pursuant to or under or within the meaning of any Bankruptcy Law: (i) commences a voluntary case or proceeding; (ii) consents to the making of a Bankruptcy Order in an involuntary case or proceeding or the commencement of any case against it; (iii) consents to the appointment of a Custodian of it or for any substantial part of its property; (iv) makes a general assignment for the benefit of its creditors; (v) files an answer or consent seeking reorganization or relief; (vi) shall admit in writing its inability to pay its debts generally; or -37- (vii) consents to the filing of a petition in bankruptcy; or (g) a court of competent jurisdiction in any involuntary case or proceeding enters a Bankruptcy Order against the Company or any Subsidiary, and such Bankruptcy Order remains unstayed and in effect for 60 consecutive days; or (h) a Custodian shall be appointed out of court with respect to the Company or any Subsidiary or with respect to all or any substantial part of the assets or properties of the Company or any Subsidiary. Section 5.02. Acceleration of Maturity; Rescission and Annulment. If (x) an Event of Default (other than an Event of Default specified in Section 5.01(f), (g) or (h) with respect to the Company) occurs and is continuing then and in every such case the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding may, and the Trustee upon the request of the Holders of not less than __% in aggregate principal amount of the Notes then Outstanding shall, declare all principal of all the Notes to be due and payable immediately in an amount equal to the principal amount of the Notes, premium, if any, thereon plus accrued and unpaid interest, if any, to the date the Notes become due and payable by a notice in writing to the Company (and to the Trustee, if given by the Holders) and upon any such declaration such principal, premium, if any, and interest, shall become immediately due and payable. If an Event of Default specified in Section 5.01(f), (g) or (h) with respect to the Company occurs and is continuing, then the principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes then outstanding shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of Notes. At any time after a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Holders of a majority -38- in aggregate principal amount of the Notes then Outstanding, by written notice to the Company and the Trustee, may rescind and annul such declaration of acceleration and its consequences if: (a) the Company has paid or deposited with the Trustee a sum sufficient to pay (i) all amounts due the Trustee under Section 6.07, including the reasonable compensation, fees, expenses, disbursements and advances of the Trustee, its agents and counsel, (ii) all overdue interest on all Notes, (iii) the principal of and premium, if any, on any Notes which have become due otherwise than by such declaration of acceleration and interest thereon at the rate then borne by the Notes, and (iv) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate then borne by the Notes; and (b) all Events of Default, other than the non-payment of principal of, premium, if any, and any accrued and unpaid interest on, the Notes that have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13. No such rescission shall affect any subsequent Default or impair any right consequent thereon. Notwithstanding the foregoing, in the event of a declaration of acceleration in respect of the Notes because an Event of Default specified in Section 5.01(e) shall have occurred and be continuing, such declaration of acceleration shall be automatically annulled if the Indebtedness that is the subject of such Event of Default has been discharged or paid or the requisite holders thereof have rescinded their declaration of acceleration in respect of such Indebtedness and written notice of such discharge or rescission, as the case may be, shall have been given to the Trustee by the Company and by the requisite holders of such Indebtedness or a trustee, fiduciary or agent for such holders, within 60 days after such declaration of acceleration in respect of the Notes and no other Event of Default has occurred which has not been cured or waived during such 60-day period. -39- Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company and each Guarantor covenant that if an Event of Default specified in Section 5.01(i) or 5.01(ii) shall have occurred and be continuing, the Company and each Guarantor will, jointly and severally, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Notes, the whole amount then due and payable on such Notes for principal, premium, if any, and interest, with interest upon the overdue principal, premium, if any, and, to the extent that payment of such interest shall be legally enforceable, upon overdue installments of interest, at the rate then borne by the Notes; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. If the Company and each Guarantor, fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may, but is not obligated under this paragraph to, institute a judicial proceeding for the collection of the sums so due and unpaid and may, but is not obligated under this paragraph to, prosecute such proceeding to judgment or final decree, and may, but is not obligated under this paragraph to, enforce the same against the Company, any Guarantor or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any Guarantor or any other obligor upon the Notes, wherever situated. If an Event of Default occurs and is continuing, the Trustee may in its discretion, but is not obligated under this paragraph to, (i) proceed to protect and enforce its rights and the rights of the Holders under this Indenture or any Note Guarantee by such appropriate private or judicial proceedings as the Trustee shall deem most effectual to protect and enforce such rights, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted herein, including, without limitation, seeking recourse against any Guarantor or (ii) proceed to protect and enforce any other proper remedy, including, without limitation, seeking recourse against any Guarantor. No recovery of any such judgment upon any property of the Company or any Guarantor shall affect or impair any rights, powers or remedies of the Trustee or the Holders. -40- Section 5.04. Trustee May File Proofs of Claims. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Notes, including each Guarantor or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, (a) to file and prove a claim for the whole amount of principal, premium, if any, and interest owing and unpaid in respect of the Notes and to file such 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, fees, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any Custodian, in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07 hereof. 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 Notes 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. -41- Section 5.05. Trustee May Enforce Claims Without Possession of Notes. All rights of action and claims under this Indenture, the Notes or any Note Guarantee may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name and as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, fees, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes in respect of which such judgment has been recovered. Section 5.06. Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal, premium, if any, or interest, upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: First: to the Trustee for amounts due under Section 6.07; Second: to Holders for interest accrued on the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for interest; Third: to Holders for principal and premium, if any, amounts owing under the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and premium, if any; and Fourth: the balance, if any, to the Company. The Trustee, upon prior written notice to the Company, may fix a record date and payment date for any payment to Noteholders pursuant to this Section 5.06. -42- Section 5.07. Limitation on Suits. No Holder of any Notes shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (a) such Holder has previously given written notice to the Trustee of a continuing Event of Default; (b) the Holders of not less than 25% in principal amount of the Outstanding Notes 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 15 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 15-day period by the Holders of a majority in aggregate principal amount of the Outstanding Notes; it being understood and intended that no one or more Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture, any Note or any Note Guarantee to affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, any Note or any Note Guarantee, except in the manner provided in this Indenture and for the equal and ratable benefit of all the Holders. Section 5.08. Unconditional Right of Holders To Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Note shall have the right, which is absolute and unconditional, to receive cash payment of the principal of, premium, if any, and (subject to Section 3.07 hereof) interest on such Note on the respective Stated Maturities expressed in -43- such Note (or, in the case of redemption, on the respective Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder. Section 5.09. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture, any Note or any Note Guarantee 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 the Company, each of the Guarantor, the Trustee and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. Section 5.10. Rights and Remedies Cumulative. Except as provided in Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Section 5.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Five or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. Section 5.12. Control by Majority. The Holders of a majority in aggregate principal amount of the Outstanding Notes shall have the right to direct the time, method and place of -44- conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, provided, however, that: (a) such direction shall not be in conflict with any rule of law or with this Indenture, any Note or any Note Guarantee or expose the Trustee to personal liability; and (b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. Section 5.13. Waiver of Past Defaults. The Holders of not less than a majority in aggregate principal amount of the Outstanding Notes may on behalf of the Holders of all the Notes waive any past Default hereunder and its consequences, except a Default (a) in the payment of the principal of, premium, if any, or interest on any Note or (b) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Note affected thereby. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. Section 5.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Note by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, 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, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 5.14 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in -45- the aggregate more than 10% in principal amount of the Outstanding Notes, or to any suit instituted by any Holder for the enforcement of the payment of the principal of, premium, if any, or interest on any Note on or after the respective Stated Maturities expressed in such Note (or, in the case of redemption, on or after the respective Redemption Dates). Section 5.15. Waiver of Stay, Extension or Usury Laws. Each of the Company and the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or other law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive the Company or any Guarantor from paying all or any portion of the principal of, premium, if any, or interest on the Notes contemplated herein or in the Notes or which may affect the covenants or the performance of this Indenture; and each of the Company and the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. Section 5.16. Unconditional Right of Holders To Receive Payment. Notwithstanding any other provision in this Indenture and any other provision of any Note, the right of any Holder of any Note to receive payment of the principal of, premium, if any, and interest on such Note on or after the respective Stated Maturities (or the respective Redemption Dates, in the case of redemption) expressed in such Note, or after such respective dates, shall not be impaired or affected without the consent of such Holder. -46- ARTICLE SIX THE TRUSTEE Section 6.01. Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default, (1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. (b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (d) 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 -47- the Trustee shall be subject to the provisions of this Section 6.01. Section 6.02. Notice of Defaults. Within 60 days after the occurrence of any Default, the Trustee shall transmit by mail to all Holders, as their names and addresses appear in the Note Register, notice of such Default hereunder known to the Trustee, unless such Default shall have been cured or waived; provided, however, that, except in the case of a Default in the payment of the principal of, premium, if any, or interest on any Note, the Trustee shall be protected in withholding such notice if and so long as a trust committee of Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders. Section 6.03. Certain Rights of Trustee. Subject to Section 6.01 hereof and the provisions of Section 315 of the Trust Indenture Act: (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, 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 shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors of the Company or any Guarantor may be sufficiently evidenced by a Board Resolution thereof; (c) the Trustee may consult with counsel and any written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon in accordance with such advice or Opinion of Counsel; (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity -48- against the costs, expenses and liabilities which might be incurred by the Trustee in compliance with such request or direction; (e) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture other than any liabilities arising out of its own negligence; (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, appraisal, bond, debenture, note, coupon, security, other evidence of indebtedness or other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the Notes then Outstanding; provided, however, that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be paid by the Company or, if paid by the Trustee or any predecessor Trustee, shall be repaid by the Company upon demand; provided, further, the Trustee in its discretion may make such further inquiry or investigation into such facts or matters as it may deem fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; and (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 shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. -49- Section 6.04. Trustee Not Responsible for Recitals, Dispositions of Notes or Application of Proceeds Thereof. The recitals contained herein and in the Notes, except the Trustee's certificates of authentication, shall be taken as the statements of the Company and the Guarantors, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes or of any Note Guarantee except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Notes and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility and Qualification on Form T-1, if any, to be supplied to the Company are true and accurate subject to the qualifications set forth therein. The Trustee shall not be accountable for the use or application by the Company of Notes or the proceeds thereof. Section 6.05. Trustee and Agents May Hold Notes; Collections; Etc. The Trustee, any Paying Agent, Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Notes, with the same rights it would have if it were not the Trustee, Paying Agent, Registrar or such other agent and, subject to Sections 6.08 and 6.13 hereof and Sections 310 and 311 of the Trust Indenture Act, may otherwise deal with the Company and receive, collect, hold and retain collections from the Company with the same rights it would have if it were not the Trustee, Paying Agent, Registrar or such other agent. Section 6.06. Money Held in Trust. All moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required herein or by law. The Trustee shall not be under any liability for interest on any moneys received by it hereunder. Section 6.07. Compensation and Indemnification of Trustee and Its Prior Claim. The Company and each Guarantor covenant and agree: (a) to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for all services -50- rendered by it hereunder (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (b) to reimburse the Trustee and each predecessor Trustee upon its request for all reasonable expenses, fees, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation, fees, and the expenses and disbursements of its counsel and of all agents and other persons not regularly in its employ), except any such expense, disbursement or advance as may arise from its negligence or bad faith; and (c) to indemnify the Trustee and each predecessor Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and its duties hereunder, including enforcement of this Section 6.07. The obligations of the Company and each Guarantor under this Section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for expenses, fees, disbursements and advances shall constitute an additional obligation hereunder and shall survive the satisfaction and discharge of this Indenture. To secure the obligations of the Company and of each Guarantor to the Trustee under this Section 6.07, the Trustee shall have a prior Lien upon all property and funds held or collected by the Trustee as such, except funds and property paid by the Company or any Guarantor and held in trust for the benefit of the Holders of particular Notes. Section 6.08. Conflicting Interests. The Trustee shall be subject to and comply with the provisions of Section 310(b) of the Trust Indenture Act. Section 6.09. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be eligible to act as Trustee under Trust Indenture Act Sections 310(a)(1) and (2) and which shall have a combined capital and surplus of at least $100,000,000, and have a Corporate Trust Office in the Borough of Manhattan in The City of New York, State of New York. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of any Federal, state, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus -51- 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, the Trustee shall resign immediately in the manner and with the effect hereinafter specified in this Article. Section 6.10. Resignation and Removal; Appointment of Successor Trustee. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 6.11. (b) The Trustee, or any trustee or trustees hereinafter appointed, may at any time resign by giving written notice thereof to the Company at least 20 Business Days prior to the date of such proposed resignation. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument executed by authority of the Board of Directors of the Company, a copy of which shall be delivered to the resigning Trustee and a copy to the successor Trustee. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 20 Business Days after the giving of such notice of resignation, the resigning Trustee may, or (if an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 Business Days after the giving of such notice of resignation) any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee. Such court may thereupon, after such notice, if any, as it may deem proper, appoint a successor Trustee. (c) The Trustee may be removed at any time by an Act of the Holders of a majority in principal amount of the Outstanding Notes, delivered to the Trustee and to the Company. (d) If at any time: (1) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act in accordance with Section 6.08 hereof after written request -52- therefor by the Company or by any Holder who has been a bona fide Holder of a Note for at least six months, or (2) the Trustee shall cease to be eligible under Section 6.09 hereof and shall fail to resign after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Note for at least six months, or (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose or rehabilitation, conservation or liquidation, then, in any case, (i) the Company by a Board Resolution may remove the Trustee, or (ii) subject to Section 5.14, the Holder of any Note who has been a bona fide Holder of a Note 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 and the appointment of a successor Trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor Trustee. (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company, by a Board Resolution of its Board of Directors, shall promptly appoint a successor Trustee. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Notes delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee and supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed by the Company or the Holders of the Notes and accepted appointment in the manner hereinafter provided, the Holder of any Note who has been a bona fide Holder for at least six months may, subject to Section 5.14, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee. -53- (f) The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Notes as their names and addresses appear in the Note Register. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office. Section 6.11. Acceptance of Appointment by Successor. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee as if originally named as Trustee hereunder; but, nevertheless, on the written request of the Company or the successor Trustee, upon payment of amounts due it pursuant to Section 6.07, such retiring Trustee shall duly assign, transfer and deliver to the successor Trustee all moneys and property at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor Trustee all the rights, powers, duties and obligations of the retiring Trustee. Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a prior claim upon all property or funds held or collected by such Trustee to secure any amounts then due it pursuant to the provisions of Section 6.07. No successor Trustee with respect to the Notes shall accept appointment as provided in this Section 6.11 unless at the time of such acceptance such successor Trustee shall be eligible to act as Trustee under this Article. Upon acceptance of appointment by any successor Trustee as provided in this Section 6.11, the successor shall give notice thereof to the Holders of the Notes, by mailing such notice to such Holders at their addresses as they shall appear on the Note Register. If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the preceding sentence may be combined with the notice called for by Section 6.10. If the Company fails to -54- give such notice within 10 days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be given at the expense of the Company. Section 6.12. Merger, Conversion, Amalgamation, Consolidation or Succession to Business Any corporation into which the Trustee may be merged or converted or with which it may be consolidated or amalgamated, or any corporation resulting from any merger, conversion, amalgamation or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided such corporation shall be eligible under this Article Six to serve as Trustee hereunder. In case at the time such successor to the Trustee under this Section 6.12 shall succeed to the trusts created by this Indenture any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee and deliver such Notes so authenticated; and, in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee under this Section 6.12 may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificate shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have been authenticated. ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY Section 7.01. Preservation of Information; Company To Furnish Trustee Names and Addresses of Holders. (a) The Trustee shall preserve the names and addresses of the Noteholders and otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall furnish or cause the Registrar to furnish to the Trustee before each Interest Payment Date, and at such -55- other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Noteholders. Neither the Company nor the Trustee shall be under any responsibility with regard to the accuracy of such list. (b) The Company will furnish or cause to be furnished to the Trustee (i) semi-annually, not more than 15 days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date; and (ii) at such other times as the Trustee may reasonably request in writing, within 30 days after receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that if and so long as the Trustee shall be the Registrar, no such list need be furnished pursuant to this Subsection 7.01(b). Section 7.02. Communications of Holders. Holders may communicate with other Holders with respect to their rights under this Indenture or under the Notes pursuant to Section 312(b) of the Trust Indenture Act. The Company and the Trustee and any and all other persons benefited by this Indenture shall have the protection afforded by Section 312(c) of the Trust Indenture Act. Section 7.03. Reports by Trustee. Within 60 days after of each year commencing with the first following the date of this Indenture, the Trustee shall mail to all Holders, as their names and addresses appear in the Note Register, a brief report dated as of such , in accordance with, and to the extent required under Section 313 of the Trust Indenture Act. At the time of its mailing to Holders, a copy of each such report shall be filed by the Trustee with the Company, the Commission and with each stock exchange on which the Notes are listed. The Company shall notify the Trustee when the Notes are listed on any stock exchange. -56- Section 7.04. Reports by Company and Each Guarantor. The Company and each Guarantor shall: (a) file with the Commission, the copies of annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) required to be filed with Commission pursuant to Section 13 or Section 15 of the Exchange Act, whether or not the Company or any Guarantor has a class of securities registered under the Exchange Act; (b) file with the Trustee within 15 days after it files or would be required to file the information specified in subsection (a) of this Section 7.04 reports and documents with the Commission copies of such information; (c) file with the Trustee and the Commission in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company and each Guarantor with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and (d) transmit by mail to all Holders, as their names and addresses appear in the Note Register, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company and each Guarantor pursuant to subsections (a) and (c) of this Section as may be required by rules and regulations prescribed from time to time by the Commission. ARTICLE EIGHT CONSOLIDATION, MERGER, SALE OF ASSETS, ETC. Section 8.01. Company May Consolidate, etc., Only on Certain Terms. The Company may, without the consent of the holders of the Notes, consolidate with or merge with or into any other corporation, or convey, transfer or lease its properties and assets substantially as an entirety to any Person, provided, -57- however, that in any such case (i) the successor corporation shall be the Company or a domestic corporation and such corporation (if other than the Company) shall assume by a supplemental indenture the Company's obligations under the Indenture and the Notes, (ii) immediately after such transaction, no Event of Default shall have occurred and be continuing, and (iii) if, as a result of any such merger or consolidation, or such conveyance, transfer or lease, an Operating Property or an Operating Asset of the Company or a Subsidiary would become subject to a Lien which would not be permitted under Section 10.12, the Notes would be secured, equally and ratably with (or prior to) all Indebtedness so secured. Upon compliance with these provisions by a successor corporation, the Company (except in the case of a lease) would be relieved of its obligations under the Indenture and the Notes. ARTICLE NINE SUPPLEMENTAL INDENTURES AND WAIVERS Section 9.01. Supplemental Indentures, Agreements and Waivers Without Consent of Holders. Without the consent of any Holders, the Company and the Guarantors, when authorized by a Board Resolution of the Board of Directors of the Company and each Guarantor, and the Trustee, at any time and from time to time, may amend, waive, modify or supplement this Indenture or the Notes or the Note Guarantees for any of the following purposes: (a) to evidence the succession of another person to the Company or a Guarantor, and the assumption by any such successor of the covenants of the Company or such Guarantor herein and in the Notes and/or in any Note Guarantee, as the case may be; (b) to add to the covenants of the Company or any Guarantor for the benefit of the Holders, or to surrender any right or power herein conferred upon the Company or any Guarantor, as applicable, herein, in the Notes or in any Note Guarantee, as the case may be; (c) to cure any ambiguity, to correct or supplement any provision herein, in the Notes or in any Note Guarantee which may be defective or inconsistent with any other -58- provision herein or to make any other provisions with respect to matters or questions arising under this Indenture, the Notes or any Note Guarantee; provided, however, that, in each case, such provisions shall not materially adversely affect the legal rights of the Holders; (d) to comply with the requirements of the Commission in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act, as contemplated by Section 9.05 hereof or otherwise; (e) to add a Guarantor pursuant to the requirements of Section 10.16 hereof or otherwise; (f) to evidence and provide the acceptance of the appointment of a successor Trustee hereunder; (g) to mortgage, pledge, hypothecate or grant a security interest in any property or assets in favor of the Trustee for the benefit of the Holders as security for the payment and performance of the Indenture Obligations; or (h) to make any other change that does not materially adversely affect the legal rights of any Holder; provided, however, that the Company has delivered to the Trustee an Opinion of Counsel stating that such change, agreement or waiver does not materially adversely affect the legal rights of any Holder. Section 9.02. Supplemental Indentures, Agreements and Waivers with Consent of Holders. With the written consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes delivered to the Company, each Guarantor and the Trustee, the Company and each Guarantor (if a party thereto) when authorized by a Board Resolution, together with the Trustee, may amend, waive, modify or supplement any other provision of this Indenture or the Notes or the Note Guarantees; provided, however, that no such amendment, waiver, modification or supplement may, without the written consent of the Holder of each Outstanding Note affected thereby: (i) reduce the principal of or change the Stated Maturity of any Note, or alter the provisions with respect to the redemption or repurchase of the Notes in any manner adverse to the Holders of the Notes; -59- (ii) reduce the rate of or change the time for payment of interest on any such Note; (iii) change the place or currency of payment of principal of (or premium) or interest on any such Note; (iv) modify any provisions of this Indenture relating to the waiver of past defaults (other than to add sections of this Indenture or the Notes subject thereto) or the right of the Holders of Notes to institute suit for the enforcement of any payment on or with respect to any such Note or any Note Guarantee in respect thereof or the modification and amendment provisions of this Indenture and the Notes (other than to add sections of this Indenture or the Notes which may not be amended, supplemented or waived without the consent of each Holder therein affected); (v) modify any of the provisions of clauses (i) through (ix) of this Section 9.02 or reduce the percentage of the principal amount of outstanding Notes necessary for amendment to or waiver of compliance with any provision of this Indenture or the Notes or for waiver of any Default in respect thereof; (vi) waive a default in the payment of principal of, interest on, or redemption payment with respect to, the Notes (except a rescission of acceleration of the Notes by the Holders thereof as provided in this Indenture and a waiver of the payment default that resulted from such acceleration); (vii) modify the ranking or priority of any Note or the Note Guarantee in respect thereof of any Guarantor in any manner adverse to the Holders of the Notes; (viii) modify the provisions of Section 10.11 or modify any of the provisions or definitions with respect thereto in a manner materially adverse to the Holders of Notes affected thereby otherwise than in accordance with this Indenture; or (ix) release any Guarantor from any of its obligations under its Note Guarantee or this Indenture otherwise than in accordance with this Indenture. Upon the written request of the Company and each Guarantor accompanied by a copy of a Board Resolution of the Board of Directors of each of them authorizing the execution of -60- any such supplemental indenture or other agreement, instrument or waiver, and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall join with the Company and each Guarantor in the execution of such supplemental indenture or other agreement, instrument or waiver. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture or other agreement, instrument or waiver, but it shall be sufficient if such Act shall approve the substance thereof. Section 9.03. Execution of Supplemental Indentures, Agreements and Waivers. In executing, or accepting the additional trusts created by, any supplemental indenture, agreement, instrument or waiver permitted by this Article Nine or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01 hereof) shall be fully protected in relying upon, an Opinion of Counsel and an Officers' Certificate from each obligor under the Notes entering into such supplemental indenture, agreement, instrument or waiver, each stating that the execution of such supplemental indenture, agreement, instrument or waiver (a) is authorized or permitted by this Indenture and (b) does not violate the provisions of any agreement or instrument evidencing any other Indebtedness of the Company, any Guarantor or any other Subsidiary of the Company. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture, agreement, instrument or waiver which affects the Trustee's own rights, duties or immunities under this Indenture, the Notes, any Note Guarantee or otherwise. Section 9.04. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article Nine, this Indenture, the Notes, if applicable, and/or the applicable Note Guarantee shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture, the Notes, if applicable, and/or the applicable Note Guarantee, as the case may be, for all purposes; and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. -61- Section 9.05. Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article Nine shall conform to the requirements of the Trust Indenture Act as then in effect. Section 9.06. Reference in Notes to Supplemental Indentures. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Board of Directors of the Company, to any such supplemental indenture may be prepared and executed by the Company and each Guarantor and authenticated and delivered by the Trustee upon a Company Order in exchange for Outstanding Notes. Section 9.07. Record Date. The Company may, but shall not be obligated to, fix, a record date for the purpose of determining the Holders entitled to consent to any supplemental indenture, agreement or instrument or any waiver, and shall promptly notify the Trustee of any such record date. If a record date is fixed those persons who were Holders at such record date (or their duly designated proxies), and only those persons, shall be entitled to consent to such supplemental indenture, agreement or instrument or waiver or to revoke any consent previously given, whether or not such persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date. Section 9.08. Revocation and Effect of Consents. Until an amendment or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder's Note, even if a notation of the consent is not made on any Note. However, any such Holder, or subsequent Holder, may revoke the consent as to his Note or portion of a Note if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective. An amendment or waiver shall become effective in accordance with its terms and thereafter bind every Holder. -62- ARTICLE TEN COVENANTS Section 10.01. Payment of Principal, Premium and Interest. The Company will duly and punctually pay the principal of, premium, if any, and interest on the Notes in accordance with the terms of the Notes and this Indenture. Section 10.02. Maintenance of Office or Agency. The Company will maintain in the Borough of Manhattan in The City of New York, State of New York, an office or agency where Notes may be presented or surrendered for payment, where Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The office of the Trustee at its Corporate Trust Office will be such office or agency of the Company, unless the Company shall designate and maintain some other office or agency for one or more of such purposes. The Company will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. The Company may also from time to time designate one or more other offices or agencies (in or outside of The City of New York, State of New York) where the Notes may be presented or surrendered for any or all such purposes, and may from time to time rescind such designation; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in The City of New York, State of New York for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency. -63- Section 10.03. Money for Note Payments To Be Held in Trust. If the Company shall at any time act as its own Paying Agent, it will, on or before each due date of the principal of, premium, if any, or interest on any of the Notes, segregate and hold in trust for the benefit of the Holders entitled thereto a sum sufficient to pay the principal, premium, if any, or 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. If the Company is not acting as Paying Agent, the Company will, on or before each due date of the principal of, premium, if any, or interest on, any Notes, deposit with a Paying Agent a sum in same day funds sufficient to pay the principal, premium, if any, or interest so becoming due, such sum to be held in trust for the benefit of the Holders entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of such action or any failure so to act. If the Company is not acting as Paying Agent, the Company will cause each Paying Agent 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 10.03, that such Paying Agent will: (a) hold all sums held by it for the payment of the principal of, premium, if any, or interest on Notes in trust for the benefit of the Holders entitled thereto until such sums shall be paid to such Holders or otherwise disposed of as herein provided; (b) give the Trustee notice of any Default by the Company or any Guarantor (or any other obligor upon the Notes) in the making of any payment of principal of, premium, if any, or interest on the Notes; (c) at any time during the continuance of any such Default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent; and (d) acknowledge, accept and agree to comply in all aspects with the provisions of this Indenture relating to the duties, rights and liabilities of such Paying Agent. -64- 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. 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, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company upon receipt of a Company Request therefor, or (if then held by the Company) will be discharged from such trust; and the Holder of such Note 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, at the option of the Company in the New York Times or the Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining shall be repaid to the Company. Section 10.04. Corporate Existence. Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect the corporate existence, rights (charter and statutory), licenses and franchises of the Company and each of the Subsidiaries; provided, however, that the Company will not be required to preserve any such right, license or franchise if the Board of Directors of the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and the Subsidiaries as a whole and that the loss thereof is not adverse in any material respect to the Holders; provided, further, that the foregoing will not prohibit a sale, transfer or conveyance of a Subsidiary of the Company or any of its assets in compliance with the terms of this Indenture. -65- Section 10.05. Payment of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (a) all material taxes, assessments and governmental charges levied or imposed (i) upon the Company or any of its Subsidiaries or (ii) upon the income, profits or property of the Company or any of the Subsidiaries and (b) all material lawful claims for labor, materials and supplies, which, if unpaid, could reasonably be expected to become a Lien upon the property of the Company or any of the Subsidiaries; provided, however, that the Company will not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim (x) whose amount, applicability or validity is being contested in good faith by appropriate proceedings properly instituted and diligently conducted or (y) if the failure to so pay, discharge or cause to be paid or discharged could not reasonably be expected to have a Material Adverse Effect (as defined in the Purchase Agreement). Section 10.06. Maintenance of Properties. The Company will cause all material properties owned by the Company or any of the Subsidiaries or used or held for use in the conduct of their respective businesses to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section 10.06 will prevent the Company from discontinuing the maintenance of any of such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business or the business of any of the Subsidiaries and is not disadvantageous in any material respect to the Holders. Section 10.07. Insurance. The Company will at all times keep all of its and the Subsidiaries' properties which are of an insurable nature insured with insurers, believed by the Company in good faith to be financially sound and responsible, against loss or damage to the extent that property of similar character is usually and customarily so insured by corporations similarly situated and owning like properties. -66- Section 10.08. Books and Records. The Company will keep proper books of record and account, in which full and correct entries will be made of all financial transactions and the assets and business of the Company and each Subsidiary of the Company in material compliance with GAAP. Section 10.09. Note Guarantees. Each of the Guarantors and the Company will, and the Company will cause each of the Guarantors to, ensure at all times that, unless otherwise permitted by this Indenture, each Note Guarantee will remain in full force and effect and shall not be subordinated by written agreement in right of payment to any Indebtedness or other obligations of the Guarantors, unless required by applicable law. Section 10.10. Provision of Financial Statements. The Company will file with the Commission (so long as the Commission will accept any such filings) and the Trustee the annual reports, quarterly reports and other documents required to be filed with the Commission pursuant to Sections 13 and 15 of the Exchange Act, whether or not the Company has a class of securities registered under the Exchange Act. The Company will also comply with the other provisions of Section 314(a) of the Trust Indenture Act. Section 10.11. Change of Control Triggering Event. In the event of a Change of Control Triggering Event (the date of such occurrence, the "Change of Control Date"), the Company will notify the Holders of Notes in writing of such occurrence and will make an offer to purchase (the "Change of Control Offer") on a Business Day (the "Change of Control Purchase Date") not more than 30 nor less than 20 Business Days following the Change of Control Date all Notes then Outstanding at a purchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the Change of Control Purchase Date. Failure to mail the notice of a Change of Control Offer on the date specified below or to have satisfied the foregoing condition precedent by the date that such notice is required to be mailed will constitute a covenant Default under Section 5.01(c). Notice of a Change of Control Offer shall be mailed by the Company not more than 20 Business Days after the Change -67- of Control Date to the Holders of Notes at their last registered addresses with a copy to the Trustee and the Paying Agent. The Change of Control Offer shall remain open from the time of mailing for at least __ Business Days and until 5:00 p.m., New York City time, on the Change of Control Purchase Date. The notice, which shall govern the terms of the Change of Control Offer, shall include such disclosures as are required by law and shall state: (a) that the Change of Control Offer is being made pursuant to this Section 10.11 and that all Notes tendered into the Change of Control Offer will be accepted for payment; (b) the purchase price (including the amount of accrued interest, if any) for each Note, the Change of Control Purchase Date and the date on which the Change of Control Offer expires; (c) that any Note not tendered for payment will continue to accrue interest in accordance with the terms thereof; (d) that, unless the Company shall default in the payment of the purchase price, any Note accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date; (e) that Holders electing to have Notes purchased pursuant to a Change of Control Offer will be required to surrender their Notes to the Paying Agent at the address specified in the notice prior to 5:00 p.m., New York City time, on the Change of Control Purchase Date and must complete any form letter of transmittal proposed by the Company and acceptable to the Trustee and the Paying Agent; (f) that Holders of Notes will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the Change of Control Purchase Date, a facsimile transmission or letter setting forth the name of the Holders, the principal amount of Notes the Holders delivered for purchase, the Note certificate number (if any) and a statement that such Holder is withdrawing his election to have such Notes purchased; -68- (g) that Holders whose Notes are purchased only in part will be issued Notes of like tenor equal in principal amount to the unpurchased portion of the Notes surrendered; (h) the instructions that Holders must follow in order to tender their Notes; and (i) information concerning the business of the Company, the most recent annual and quarterly reports of the Company filed with the Commission pursuant to the Exchange Act (or, if the Company is not required to file any such reports with the Commission, the comparable reports prepared pursuant to Section 10.10), a description of material developments in the Company's business, information with respect to pro forma historical financial information after giving effect to such Change of Control and such other information concerning the circumstances and relevant facts regarding such Change of Control and Change of Control Offer as would, in the good faith judgment of the Company, be material to a Holder of Notes in connection with the decision of such Holder as to whether or not it should tender Notes pursuant to the Change of Control Offer. On the Change of Control Purchase Date, the Company will (i) accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent money, in immediately available funds, sufficient to pay the purchase price of all Notes or portions thereof so tendered and accepted and (iii) deliver to the Trustee the Notes so accepted together with an Officers' Certificate setting forth the Notes or portions thereof tendered to and accepted for payment by the Company. The Paying Agent will promptly mail or deliver to the Holders of Notes so accepted payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note of like tenor equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Change of Control Offer not later than the first Business Day following the Change of Control Purchase Date. The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act, and any other securities laws or regulations in connection with the repurchase of Notes pursuant to a Change -69- of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 10.11, the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 10.11 by virtue thereof. Section 10.12. Restrictions on Liens. The Company will not, and will not permit any Subsidiary to issue, assume or guarantee any indebtedness secured by any Lien upon any Operating property or Operating Asset of the Company or any Subsidiary, whether such property or assets are now owned or hereafter acquired, without in any such case effectively providing that the Notes (together with, if the Company shall so determine, any other Indebtedness ranking equally with the Notes) shall be secured at least equally and ratably with such Indebtedness except that the foregoing restrictions shall not apply to: (i) (A) a purchase money Lien on such property (including security for inventory financing in the ordinary course of business and vendors' rights under purchase contracts under an agreement whereby title is retained for the purpose of securing the purchase price thereof) given simultaneously with or within ___ days after the latest of (1) the acquisition or completion of construction or completion of substantial reconstruction, renovation, remodeling, expansion or improvement (each a "substantial improvement") of such property, or (2) the date such property was placed in operation after the acquisition or completion of any such construction or substantial improvement, or (B) the acquisition of property not theretofore owned by the Company or such Subsidiary subject to an existing Lien securing Indebtedness (whether or not assumed), including in each case Indebtedness incurred for reimbursement of funds previously expended for any construction or substantial improvement, provided, however, that in each case (y) such Lien is limited to any or all of (i) such acquired or constructed property or substantial improvement (including accretions thereto), (ii) the real property on which any construction or substantial improvement occurs, or (iii) with respect to distribution centers, any equipment used directly in the operation of, or the business conducted on, the real property on which any construction or substantial improvement occurs, and (z) the total amount of the indebtedness secured by such Lien, together with all other Indebtedness to Persons other than the -70- Company or a Subsidiary secured by Liens on such property, shall not exceed the lesser of (i) the total cost of such property, including any such construction or substantial improvement, to the Company or a Subsidiary, or (ii) the fair market value thereof immediately following the acquisition, construction or substantial improvement thereof by the Company or a Subsidiary; (ii) a Lien on real property of the Company or a Subsidiary or, with respect to distribution centers, on equipment used directly in the operation of, or the business conducted on, such real property, which Lien is the sole security for Indebtedness and (w) is incurred within three years after the latest of (1) the date of issuance of the Notes under the Indenture, (2) the acquisition of the real property or (3) the completion of construction or substantial improvement on such real property; (x) is incurred for the purpose of reimbursing the Company or such Subsidiary, as the case may be, for the cost of acquisition and/or the cost of improvement of such real property and equipment, and (y) the amount of which does not exceed the lesser of the aggregate cost of such real property, improvements and equipment or the fair market value thereof; (iii) Liens (1) existing on the date of the Indenture, or (2) on assets of a Subsidiary existing on the date it became a Subsidiary; (iv) Liens in favor of the Company or a Subsidiary; (v) Liens securing only the Indebtedness issued under the Indenture; and (vi) Liens to secure Indebtedness incurred to extend, renew, refinance or replace Indebtedness secured by any Liens referred to in the foregoing clauses (i) to (v), provided, however, that the principal amount of the extended, renewed, refinanced or replaced Indebtedness does not exceed the principal amount of Indebtedness so extended, renewed, refinanced or replaced, plus transaction costs and fees, and that any such Lien applies only to the same property or assets subject to the prior permitted Lien (and, in the case of real property, improvements). -71- Section 10.13. Statement by Officers as to Default. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, a written statement signed by the chairman or a chief executive officer, the principal financial officer or principal accounting officer of the Company, stating (i) that a review of the activities of the Company during the preceding fiscal year has been made under the supervision of the signing officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and (ii) that, to the knowledge of each officer signing such certificate, the Company has kept, observed, performed and fulfilled each and every covenant and condition contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions, conditions and covenants hereof (or, if a Default shall have occurred, describing all such Defaults of which such officers may have knowledge, their status and what action the Company is taking or proposes to take with respect thereto). When any Default has occurred and is continuing, or if the Trustee or any Holder or the trustee for or the holder of any other evidence of Indebtedness of the Company or any Restricted Subsidiary gives any notice or takes any other action with respect to a claimed default (other than with respect to Indebtedness (other than Indebtedness evidenced by the Notes) in the principal amount of less than $________), the Company will promptly notify the Trustee of such Default, notice or action and will deliver to the Trustee by registered or certified mail or by telegram, or facsimile transmission followed by hard copy by registered or certified mail an Officers' Certificate specifying such event, notice or other action within five Business Days after the Company becomes aware of such occurrence and what action the Company is taking or proposes to take with respect thereto. Section 10.14. Restrictions on Sale and Leaseback Transactions. Without equally and ratably securing the Notes (together with, if the Company shall so determine, any other Indebtedness ranking equally with the Notes), the Company will not, nor will it permit any Subsidiary to, enter into any arrangement with any Person providing for the leasing by the Company or any Subsidiary of any Operating Property or Operating Asset that has been or is to be sold or transferred by the Company or such Subsidiary to such person with the intention of taking back a lease of such property (a "Sale and Leaseback -72- Transaction") unless the terms of such sale or transfer have been determined by the Company's Board of Directors to be fair and arms'-length and (i) within 180 days after the receipt of the proceeds of such sale or transfer, the Company or any Subsidiary applies an amount equal to the greater of the net proceeds of such sale or transfer or the fair value of such Operating Property or Operating Asset at the time of such sale or transfer to the prepayment or retirement (other than any mandatory prepayment or retirement) of Senior Funded Debt of the Company or a Subsidiary or (ii) the Company or such Subsidiary would be entitled, at the effective date of such sale or transfer, to incur Indebtedness secured by a Lien on such Operating Property or Operating Assets, in an amount at least equal to the Attributable Debt in respect thereof, without equally and ratably securing the Notes pursuant to Section 10.12. The foregoing restriction will not apply to (w) any Sale and Leaseback Transaction for a term of not more than three years including renewals, (x) any Sale and Leaseback Transaction with respect to Operating Property (and, with respect to distribution centers, equipment used directly in the operation of, or the business conducted on, such Operating Property) if a binding commitment with respect thereto is entered into within three years after the latest of (1) the date of issuance of the Notes under the Indenture or (2) the date such Operating Property was acquired (as the term "acquired" is used in the definition of Operating Property), (y) any Sale and Leaseback Transaction with respect to Operating Assets if a binding commitment with respect thereto is entered into within 180 days after the latter of the date such property was acquired and, if applicable, the date such property was first placed in operation, or (z) any Sale and Leaseback Transaction between the Company and a Subsidiary or between Subsidiaries provided that the lessor shall be the Company or a wholly-owned Subsidiary. Exempted Debts. Notwithstanding the restrictions in the Indenture on (i) Liens and (ii) Sale and Leaseback Transactions, the Company or its Subsidiaries may, in addition to amounts permitted under such restrictions, issue, assume or guarantee Indebtedness secured by Liens, or enter into Sale and Leaseback Transactions, provided, however, that, after giving effect thereto, the aggregate outstanding amount of all such Indebtedness secured by Liens plus Attributable Debt resulting from such Sale and Leaseback Transactions (collectively, the "Exempted Debt") does not exceed __% of Consolidated Net Tangible Assets. -73- No Special Protection in the Event of a Highly Leveraged Transaction. The terms of the Notes will not afford the holders special protection in the event of a highly leveraged transaction. Section 10.15. Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company, the Guarantors and any other obligor on the Notes will furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenants compliance with which constitutes a condition precedent) relating to the proposed action have been complied with, and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that, in the case of any such application or request as to which the furnishing of such documents, certificates and/or opinions is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture will include: (i) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. Section 10.16. Additional Guarantors. The Company will cause each of its Subsidiaries that becomes a guarantor or obligor in respect of the Credit Facility following the Issue Date -74- to execute and deliver a supplemental indenture pursuant to which it will become a Guarantor under this Indenture. ARTICLE ELEVEN SATISFACTION AND DISCHARGE Section 11.01. Satisfaction and Discharge of Indenture. This Indenture shall cease to be of further effect (except as to surviving rights or registration of transfer or exchange of Notes herein expressly provided for) and the Trustee, on written demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when either (a) all Notes theretofore authenticated and delivered (other than (A) Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 hereof and (B) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or (b) (i) all such Notes not theretofore delivered to the Trustee for cancellation have become due and payable and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee in trust an amount of money in dollars sufficient to pay and discharge the entire Indebtedness on such Notes not theretofore delivered to the Trustee for cancellation, for the principal of, premium, if any, and interest to the date of such deposit; (ii) the Company or any Guarantor has paid or caused to be paid all other sums payable hereunder by the Company and the Guarantor; and (iii) the Company and each of the Guarantors have delivered to the Trustee (i) irrevocable instructions to apply the deposited money toward payment of the Notes at the Stated Maturities and the Redemption Dates -75- thereof, and (ii) an Officers' Certificate and an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with; provided, that such Opinion of Counsel may rely, as to matters of fact, upon an Officers' Certificate. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.07 and, if money shall have been deposited with the Trustee pursuant to subclause (a)(ii) of this Section 11.01, the obligations of the Trustee under Section 11.02 and the last paragraph of Section 10.03 shall survive. Section 11.02. Application of Trust Money. Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal of, premium, if any, and interest on the Notes for whose payment such money has been deposited with the Trustee. ARTICLE TWELVE GUARANTEE OF NOTES Section 12.01. Unconditional Guarantee. Each Guarantor hereby jointly and severally fully and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company or any other Note Guarantor to the Holders or the Trustee hereunder or thereunder, that: (a) the principal of, premium, if any, and interest on the Notes will be duly and punctually paid in full when due, whether at maturity, upon redemption, by acceleration or otherwise, and interest on the overdue principal and (to the extent permitted by law) interest, if any, on the Notes and all other obligations of the Company or the Guarantor to the Holders or the -76- Trustee hereunder or thereunder (including fees, expenses or other) and all other Indenture Obligations will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Indenture Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed, or failing performance of any other obligation of the Company to the Holders, for whatever reason, each Guarantor shall be obligated to pay, or to perform or cause the performance of, the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under this Guarantee, and shall entitle the Holders of Notes to accelerate the obligations of the Guarantor hereunder in the same manner and to the same extent as the obligations of the Company. Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Company, any action to enforce the same, whether or not a Note Guarantee is affixed to any particular Note, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes, this Indenture and this Note Guarantee. This Note Guarantee is a guarantee of payment and not of collection. If any Holder or the Trustee is required by any court or otherwise to return to the Company or to any Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to the Company or such Guarantor, any amount paid by the Company or such Guarantor to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor further agrees that, as between it, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (a) subject to this Article Twelve, the maturity of the obligations guaranteed hereby may be -77- accelerated as provided in Article Five hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (b) in the event of any acceleration of such obligations as provided in Article Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Note Guarantor for the purpose of this Guarantee. Section 12.02. Execution and Delivery of Note Guarantee. To further evidence the Note Guarantee set forth in Section 12.01, each Guarantor hereby agrees that a notation of such Note Guarantee shall be endorsed on each Note authenticated and delivered by the Trustee and executed by either manual or facsimile signature of an Officer of each Guarantor. Each of the Guarantors hereby agrees that its Note Guarantee set forth in Section 12.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee. If an Officer of a Guarantor whose signature is on this Indenture or a Note Guarantee no longer holds that office at the time the Trustee authenticates such Note or at any time thereafter, such Guarantor's Note Guarantee of such Note shall be valid nevertheless. The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of any Note Guarantee set forth in this Indenture on behalf of each Guarantor. Section 12.03. Additional Guarantors. Any person that was not a Guarantor on the date of this Indenture may become a Guarantor by executing and delivering to the Trustee (a) a supplemental indenture in form and substance satisfactory to the Trustee, which subjects such person to the provisions (including the representations and warranties) of this Indenture as a Guarantor, and (b) an Opinion of Counsel to the effect that such supplemental indenture has been duly authorized and executed by such person and constitutes the legal, valid and binding obligation of such person (subject to such customary assumptions and exceptions as may be acceptable to the Trustee in its reasonable discretion). -78- Section 12.04. Release of a Guarantor. (i) Upon the sale, exchange, transfer or other disposition (by merger or otherwise), other than a lease, of a Subsidiary of the Company that is a Guarantor of all of the Capital Stock of such Subsidiary or all, or substantially all, the assets of such Subsidiary, to any person that is not an Affiliate of the Company, and which sale or other disposition is otherwise in compliance with the terms of this Indenture or (ii) at the request of the Company, in the event that the lenders under the Credit Facility (or any other revolving credit or term loan facility entitled to a guarantee from such Guarantor) unconditionally release such Guarantor from its guarantee obligations under such facility, if such Guarantor is not a Leveraged Subsidiary. Such Guarantor shall be deemed automatically and unconditionally released and discharged from all obligations under this Article Twelve without any further action required on the part of the Trustee or any Holder. The Trustee shall deliver an appropriate instrument evidencing such release upon receipt of a request of the Company accompanied by an Officers' Certificate certifying as to the compliance with this Section and the Company's rights of redemption in accordance with the terms of the Notes in this Section 12.04. Any Guarantor not so released will remain liable for the full amount of principal of, premium, if any, and interest on the Notes as provided in this Article Twelve. Section 12.05. Waiver of Subrogation. Until this Indenture is discharged and all of the Notes are discharged and paid in full, each Guarantor hereby irrevocably waives and agrees not to exercise any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of the Company's obligations under the Notes or this Indenture and such Guarantor's obligations under this Note Guarantee and this Indenture, in any such instance including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, and any right to participate in any claim or remedy against the Company, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim or other rights. If any amount shall be paid to any Guarantor in violation of the preceding sentence and any amounts owing to the Trustee or the Holders of Notes under the -79- Notes, this Indenture, or any other document or instrument delivered under or in connection with such agreements or instruments, shall not have been paid in full, such amount shall have been deemed to have been paid to such Guarantor for the benefit of, and held in trust for the benefit of, the Holders of the Notes, and shall forthwith be paid to the Trustee for the benefit of such Holders to be credited and applied to the Notes, whether matured or unmatured, in accordance with the terms of this Indenture. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the waiver set forth in this Section 12.05 is knowingly made in contemplation of such benefits. Section 12.06. Reliance on Judicial Order or Certificate of Liquidating Agent Regarding Dissolution, etc. of Guarantors. Upon any payment or distribution of assets of any Guarantor referred to in this Article Twelve, the Trustee, subject to the provisions of Section 6.01, and the Holders, shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other person making such payment or distribution, delivered to the Trustee or to the Holders, for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Twelve; provided, however, that the foregoing shall apply only if such court has been fully apprised of the provisions of this Article Twelve. Section 12.07. Article Twelve Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article Twelve shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article Twelve in addition to or in place of the Trustee. -80- Section 12.08. No Suspension of Remedies. Nothing contained in this Article Twelve shall limit the right of the Trustee or the Holders of Notes to take any action to accelerate the maturity of the Notes pursuant to Article Five or to pursue any rights or remedies hereunder or under applicable law. Section 12.09. Limitation of Subsidiary Guarantor's Liability. Each Guarantor that is a Subsidiary of the Company, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee by such Guarantor pursuant to its Note Guarantee not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To effectuate the foregoing intention, the Holders and such Guarantor hereby irrevocably agree that the obligations of such Guarantor under this Note Guarantee shall be limited to the maximum amount which, after giving effect to all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Note Guarantee or pursuant to its contribution obligations under this Article Twelve, will result in the obligations of such Guarantor under its Note Guarantee not constituting such fraudulent transfer or conveyance. Section 12.10. Contribution from Other Guarantors. Each Guarantor that makes a payment or distribution under its Note Guarantee shall be entitled to a contribution from each other Guarantor in a pro rata amount based on the net assets of each Guarantor, determined in accordance with GAAP. Section 12.11. Obligations Reinstated. The obligations of each Guarantor hereunder shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment which would otherwise have reduced the obligations of any Guarantor hereunder (whether such payment shall have been made by or on behalf of the Company or by or on behalf of a Guarantor) is rescinded or reclaimed from any of the Holders upon the insolvency, bankruptcy, liquidation or reorganization of the Company or any Guarantor or otherwise, all as though such payment had not been made. If -81- demand for, or acceleration of the time for, payment by the Company is stayed upon the insolvency, bankruptcy, liquidation or reorganization of the Company, all such Indebtedness otherwise subject to demand for payment or acceleration shall nonetheless be payable by each Guarantor as provided herein. Section 12.12. No Obligation To Take Action Against the Company. Neither the Trustee nor any other Person shall have any obligation to enforce or exhaust any rights or remedies or to take any other steps under any security for the Indenture Obligations or against the Company or any other Person or any property of the Company or any other Person before the Trustee is entitled to demand payment and performance by any or all Guarantors of their liabilities and obligations under their Note Guarantees or under this Indenture. Section 12.13. Dealing with the Company and Others. The Holders, without releasing, discharging, limiting or otherwise affecting in whole or in part the obligations and liabilities of any Guarantor hereunder and without the consent of or notice to any Guarantor, may (a) grant time, renewals, extensions, compromises, concessions, waivers, releases, discharges and other indulgences to the Company or any other Person; (b) take or abstain from taking security or collateral from the Company or from perfecting security or collateral of the Company; (c) release, discharge, compromise, realize, enforce or otherwise deal with or do any act or thing in respect of (with or without consideration) any and all collateral, mortgages or other security given by the Company or any third party with respect to the obligations or matters contemplated by this Indenture or the Notes; (d) accept compromises or arrangements from the Company; (e) apply all monies at any time received from the Company or from any security upon such part of the Indenture Obligations as the Holders may -82- see fit or change any such application in whole or in part from time to time as the Holders may see fit; and (f) otherwise deal with, or waive or modify their right to deal with, the Company and all other Persons and any security as the Holders or the Trustee may see fit. [signatures on following pages] -83- IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written. SAKS INCORPORATED By: ---------------------------------- Name: Title: By: ---------------------------------- Name: Title: SUBSIDIARY GUARANTOR(S) By: ---------------------------------- Name: Title: By: ---------------------------------- Name: Title: -84- -85- THE FIRST NATIONAL BANK OF CHICAGO, as Trustee By: ---------------------------------- Name: Title: EXHIBIT A [FORM OF NOTE] SAKS INCORPORATED ----------------- % SENIOR NOTES DUE 20[ ] CUSIP No. __________ No. ___________ $ SAKS INCORPORATED, a corporation incorporated under the laws of the State of Tennessee (herein called the "Company," which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to _______________ or registered assigns, the principal sum of _______________ Dollars on , 20[ ], at the office or agency of the Company referred to below, and to pay interest thereon on and (each an "Interest Payment Date"), of each year, commencing on , 19[ ], accruing from the Issue Date or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of % per annum, until the principal hereof is paid or duly provided for. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture referred to on the reverse hereof, be paid to the person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the and (each a "Regular Record Date"), 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, and interest on such defaulted interest at the then applicable interest rate borne by the Notes, to the extent lawful, shall forthwith cease to be payable to the Holder on such Regular Record Date, and may be paid to the person in whose name this Note (or one or more Predecessor Notes) 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 of which shall be given to Holders of Notes not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent A-1 with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in such Indenture. Payment of the principal of, premium, if any, and interest on this Note will be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan in The City of New York, State of New York, or at such other office or agency of the Company as may be maintained for such purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made at the option of the Company by check mailed to the address of the person entitled thereto as such address shall appear on the Note Register. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof. Unless the certificate of authentication hereon has been duly executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose. [Remainder of Page Intentionally Left Blank] A-2 IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed. Dated: SAKS INCORPORATED By: --------------------------------- Name: Title: By: --------------------------------- Name: Title: TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the % Senior Notes due 20[ ], referred to in the within-mentioned Indenture. THE FIRST NATIONAL BANK OF CHICAGO, as Trustee By: --------------------------------- Authorized Officer A-3 [REVERSE OF NOTE] 1. Indenture. This Note is one of a duly authorized issue of Notes of the Company designated as its % Senior Notes due 20[ ]. The Notes are limited (except as otherwise provided in the Indenture referred to below) in aggregate principal amount to $[ ],000,000, which may be issued under an indenture (herein called the "Indenture") dated as of , 1998, by and among the Company, each of the Guarantors named in the Indenture (the "Guarantors") and The First National Bank of Chicago, 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, obligations and immunities thereunder of the Company, the Trustee, the Guarantors and the Holders of the Notes, and of the terms upon which the Notes are, and are to be, authenticated and delivered. All capitalized terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and Holders of Notes are referred to the Indenture and the TIA for a statement of such terms. No reference herein to the Indenture and no provisions of this Note or of the Indenture shall alter or impair the obligation of the Company or any Guarantor, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the times, place, and rate, and in the coin or currency, herein prescribed. 2. Note Guarantees. This Note is initially entitled to the benefits of the certain senior Note Guarantees of the Guarantors and may thereafter be entitled to certain other senior Note Guarantees made for the benefit of the Holders. Reference is hereby made to Article Twelve of the Indenture and to the Note Guarantees endorsed on this Note for a statement of the respective rights, limitations of rights, duties and obligations thereunder of the Guarantors, the Trustee and the Holders. 3. Redemption. The Notes will not be subject to redemption at the option of the Company at any time. A-4 4. Offers to Purchase. Section 10.11 of the Indenture provided that upon the occurrence of a Change of Control Triggering Event, the Company shall make an offer to purchase all or a portion of the Notes in accordance with the procedures set forth in the Indenture. 5. Defaults and Remedies. If an Event of Default occurs and is continuing, the principal of all of the Outstanding Notes, plus all accrued and unpaid interest, if any, to and including the date the Notes are paid, may be declared due and payable in the manner and with the effect provided in the Indenture. 6. Defeasance. The Indenture contains provisions (which provisions apply to this Note) for defeasance at any time of (a) the entire indebtedness of the Company and the Guarantors on this Note and (b) certain restrictive covenants and related Defaults and Events of Default, in each case upon compliance by the Company with certain conditions set forth therein. 7. Amendments and Waivers. The Indenture permits, with certain exceptions as provided therein, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Notes at the time Outstanding, on behalf of the Holders of all the Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past Defaults under the Indenture and this Note and their consequences. Any such consent or waiver by or on behalf of the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. 8. Denominations, Transfer and Exchange. The Notes are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of a different authorized denomination, as requested by the Holder surrendering the same. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is A-5 registrable on the Note Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company maintained for such purpose in the Borough of Manhattan in The City of New York, State of New York, or at such other office or agency of the Company as may be maintained for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. No service charge shall be made for any registration of transfer or exchange or redemption of Notes, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. 9. Persons Deemed Owners. Prior to and at the time of due presentment of this Note 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 Note is registered as the owner hereof for all purposes, whether or not this Note shall be overdue, and neither the Company, the Trustee nor any agent shall be affected by notice to the contrary. 10. GOVERNING LAW. THE INDENTURE, THIS NOTE AND EACH NOTE GUARANTEE SET FORTH BELOW SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. The Company will furnish to any Holder of a Note upon written request and without charge a copy of the Indenture. Requests may be made to: Saks Incorporated, 750 Lakeshore Parkway, Birmingham, Alabama 35211. A-6 ASSIGNMENT FORM If you the holder want to assign this Note, fill in the form below and have your signature guaranteed: I or we assign and transfer this Note to - -------------------------------------------------------------------------------- (Insert assignee's social security or tax ID number) ---------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (Print or type assignee's name, address and zip code) and irrevocably appoint - -------------------------------------------------------------------------------- agent to transfer this Note on the books of the Company. The agent may substitute another to act for such agent. - -------------------------------------------------------------------------------- Date: Your signature: -------------- -------------------------------- (Sign exactly as your name appears on the other side of this Note) By: -------------------------------- NOTICE: To be executed by an executive officer Signature Guarantee: -------------------- A-7 OPTION OF HOLDER TO ELECT PURCHASE If you wish to have this Note purchased by the Company pursuant to Section 10.11 of the Indenture, sign below. If you wish to have a portion of this Note purchased by the Company pursuant to Section 10.11 of the Indenture, state the amount: $______________ Date: Your signature: -------------- -------------------------------- (Sign exactly as your name appears on the other side of this Note) By: -------------------------------- NOTICE: To be executed by an executive officer Signature Guarantee: -------------------- A-8 EXHIBIT B FORM OF LEGEND FOR BOOK-ENTRY SECURITIES Any Global Note authenticated and delivered hereunder shall bear a legend in substantially the following form: THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. B-1 EXHIBIT C FORM OF NOTE GUARANTEE For value received, the undersigned hereby fully and unconditionally guarantees to the Holder of this Note the cash payments in United States dollars of principal of, premium, if any, and interest on this Note in the amounts and at the time when due and interest on the overdue principal, premium, if any, and interest, if any, on this Note, if lawful, and the payment or performance of all other obligations of the Company under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note, Article Twelve of the Indenture and this Note Guarantee. This Note Guarantee will become effective in accordance with Article Twelve of the Indenture and its terms shall be evidenced therein. The validity and enforceability of any Note Guarantee shall not be affected by the fact that it is not affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of May 21, 1997, by and among Saks Incorporated, the undersigned and The First National Bank of Chicago, as Trustee, as amended or supplemented (the "Indenture"). The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article Twelve of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee and all of the other provisions of the Indenture to which this Note Guarantee relates. THIS NOTE GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE SUBSIDIARY GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE NON- EXCLUSIVE JURISDICTION OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THE NOTES OR THIS NOTE GUARANTEE. This Note Guarantee is subject to release upon the terms set forth in the Indenture. C-1 IN WITNESS WHEREOF, the undersigned Guarantor has caused this Note Guarantee to be duly executed. Dated: [NAME OF GUARANTOR] By: ---------------------------------- Name: Title: By: ---------------------------------- Name: Title: C-2 EX-12.1 3 STATEMENT REGARDING COMPUTATION EXHIBIT 12.1
Saks Incorporated and Subsidiaries Ratio of Earnings to Fixed Charges (A) 26 Weeks 26 Weeks 52 Weeks 52 Weeks Ended Ended Ended Ended August 1, August 2, January 31, February 1, Ratio of Earnings to Fixed Charges 1998 1997 1998 1997 - ---------------------------------- ------------ ------------ ------------ ---------- EARNINGS: Pre-tax income from continuing operations and before extraordinary items and cumulative effect of changes in accounting methods 54,256 35,969 221,811 144,576 Fixed charges 79,584 83,739 172,321 157,227 Preferred stock dividends - - - (1,305) Capitalized interest (2,320) (2,893) (6,297) (2,803) -------- ------------ ---------- ---------- Total Earnings 131,520 116,815 387,835 297,695 ======= ============ ========== ========== FIXED CHARGES: Interest expense 49,292 57,497 113,685 114,881 Capitalized interest 2,320 2,893 6,297 2,803 Portion of rental expense (one-third) 27,972 23,349 52,339 38,238 Preferred stock dividends - - - 1,305 -------- ------------ ---------- ---------- Total Fixed Charges 79,584 83,739 172,321 157,227 ======= ============ ========== ========== Ratio of Earnings to Fixed Charges 1.7 1.4 2.3 1.9 ======= ============ ========== ========== 53 Weeks 52 Weeks 52 Weeks Ended Ended Ended February 3, January 28, January 29 1996 1995 1994 ------------ ------------ ----------- EARNINGS: Pre-tax income from continuing operations and before extraordinary items and cumulative effect of changes in accounting methods 51,239 132,563 (366,980) Fixed charges 180,224 152,935 129,616 Preferred stock dividends (3,197) (2,777) - Capitalized interest (2,920) (2,571) (1,567) ------------ --------- ----------- Total Earnings 225,347 280,150 (238,931) ============ ========= =========== FIXED CHARGES: Interest expense 141,725 117,065 99,205 Capitalized interest 2,920 2,571 1,567 Portion of rental expense (one-third) 32,383 30,522 28,844 Preferred stock dividends 3,197 2,777 - ------------ --------- ----------- Total Fixed Charges 180,224 152,935 129,616 ============ ========= =========== Ratio of Earnings to Fixed Charges 1.3 1.8 - ============ ========= ===========
(A) For the fiscal year ended January 29, 1994, the Company reported a pre-tax loss from continuing operations of $366,980 due to Saks reporting a pre-tax loss of $231,283 as well as Carson Pirie Scott filing for and emerging from Chapter 11 bankruptcy during fiscal 1993. Net income after extraordinary items and changes in accounting methods for fiscal 1993 was $230,091. The ratio of earnings to fixed charges calculation for fiscal year ended January 29, 1994, indicated a fixed charge coverage deficiency of $368,547. EX-25.1.1 4 STATEMENT OF ELIGIBILITY & QUALIFICATION OF TRUSTEE EXHIBIT 25.1.1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM T-1 -------- STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ____________________________ THE FIRST NATIONAL BANK OF CHICAGO (EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER) A NATIONAL BANKING ASSOCIATION 36-0899825 (I.R.S. EMPLOYER IDENTIFICATION NUMBER) ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) THE FIRST NATIONAL BANK OF CHICAGO ONE FIRST NATIONAL PLAZA, SUITE 0286 CHICAGO, ILLINOIS 60670-0286 ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919 (NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE) _____________________________ SAKS INCORPORATED (EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER) TENNESSEE 62-0331040 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) 750 LAKESHORE PARKWAY BIRMINGHAM, ALABAMA 35211 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) SENIOR DEBT SECURITIES, WITH GUARANTEES (TITLE OF INDENTURE SECURITIES) ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING -------------------- INFORMATION AS TO THE TRUSTEE: (a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT. Comptroller of Currency, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C., The Board of Governors of the Federal Reserve System, Washington, D.C. (b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS. The trustee is authorized to exercise corporate trust powers. ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR ------------------------------ IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION. No such affiliation exists with the trustee. ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A ----------------- PART OF THIS STATEMENT OF ELIGIBILITY. 1. A copy of the articles of association of the trustee now in effect.* 2. A copy of the certificates of authority of the trustee to commence business.* 3. A copy of the authorization of the trustee to exercise corporate trust powers.* 4. A copy of the existing by-laws of the trustee.* 5. Not Applicable. 6. The consent of the trustee required by Section 321(b) of the Act. 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. 8. Not Applicable. 9. Not Applicable. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, The First National Bank of Chicago, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and the State of Illinois, on this 22nd day of September, 1998. THE FIRST NATIONAL BANK OF CHICAGO, TRUSTEE By /s/ John R. Prendiville John R. Prendiville Vice President * EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 25, 1996 (REGISTRATION NO. 333-14201). EXHIBIT 6 THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b) OF THE ACT September 22, 1998 Securities and Exchange Commission Washington, D.C. 20549 Gentlemen: In connection with the qualification of an indenture between Saks Incorporated and The First National Bank of Chicago, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. Very truly yours, THE FIRST NATIONAL BANK OF CHICAGO By /s/ John R. Prendiville John R. Prendiville Vice President EXHIBIT 7 Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/97 ST-BK: 17-1630 FFIEC 031 Address: One First National Plaza, Ste 0303 Page RC-1 City, State Zip: Chicago, IL 60670 FDIC Certificate No.: 0/3/6/1/8 ---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1997 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter. SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS IN C400 -------- ASSETS 1. Cash and balances due from depository institutions (from Schedule RC-A): a. Noninterest-bearing balances and currency and coin(1) 0081 4,267,336 1.a. b. Interest-bearing balances(2) 0071 6,893,837 1.b. 2. Securities a. Held-to-maturity securities (from Schedule RC-B, column A) 1754 0 2.a. b. Available-for-sale securities (from Schedule RC-B, column D)......... 1773 5,691,722 2.b. 3. Federal funds sold and securities purchased under agreements to resell 1350 6,339,940 3. 4. Loans and lease financing receivables: a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 25,202,984 4.a. b. LESS: Allowance for loan and lease losses RCFD 3123 419,121 4.b. c. LESS: Allocated transfer risk reserve RCFD 3128 0 4.c. d. Loans and leases, net of unearned income, allowance, and reserve (item 4.a minus 4.b and 4.c) 2125 24,783,863 4.d. 5. Trading assets (from Schedule RD-D) 3545 6,703,332 5. 6. Premises and fixed assets (including capitalized leases) 2145 743,426 6. 7. Other real estate owned (from Schedule RC-M) 2150 7,727 7. 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 134,959 8. 9. Customers' liability to this bank on acceptances outstanding 2155 644,340 9. 10. Intangible assets (from Schedule RC-M) 2143 268,501 10. 11. Other assets (from Schedule RC-F) 2160 2,004,432 11. 12. Total assets (sum of items 1 through 11) 2170 58,483,415 12.
_____________ (1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held for trading. Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031 Address: One First National Plaza, Ste 0303 Page RC-2 City, State Zip: Chicago, IL 60670 FDIC Certificate No.: 0/3/6/1/8 ---------
SCHEDULE RC-CONTINUED DOLLAR AMOUNTS IN THOUSANDS BIL MIL THOU - -------------------------------------------------------------------------------------------------------------------- LIABILITIES 13. Deposits: a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part 1) RCON 2200 21,756,846 13.a (1) Noninterest-bearing(1) RCON 6631 9,197,227 13.a.1 (2) Interest-bearing RCON 6636 559,619 13.a.2 b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, part II) RCFN 2200 14,811,410 13.b. (1) Noninterest bearing RCFN 6631 332,801 13.b.1 (2) Interest-bearing RCFN 6636 14,478,609 13.b.2 14. Federal funds purchased and securities sold under agreements to repurchase: RCFD 2800 4,535,422 14 15. a. Demand notes issued to the U.S. Treasury RCON 2840 43,763 15.a b. Trading Liabilities (from Schedule RC-D)....................... RCFD 3548 6,523,239 15.b 16. Other borrowed money: a. With a remaining maturity of one year or less RCFD 2332 1,360,165 16.a b. With a remaining maturity of than one year through three years A547 576,492 16.b c. With a remaining maturity of more than three years............ A548 703,981 16.c 17. Not applicable 18. Bank's liability on acceptance executed and outstanding RCFD 2920 644,341 18 19. Subordinated notes and debentures (2) RCFD 3200 1,700,000 19 20. Other liabilities (from Schedule RC-G) RCFD 2930 1,322,077 20 21. Total liabilities (sum of items 13 through 20) RCFD 2948 53,987,736 21 22. Not applicable EQUITY CAPITAL 23. Perpetual preferred stock and related surplus RCFD 3838 0 23 24. Common stock RCFD 3230 200,858 24 25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,999,001 25 26. a. Undivided profits and capital reserves RCFD 3632 1,273,239 26.a. b. Net unrealized holding gains (losses) on available-for-sale securities RCFD 8434 24,096 26.b. 27. Cumulative foreign currency translation adjustments RCFD 3284 (1,515) 27 28. Total equity capital (sum of items 23 through 27) RCFD 3210 4,495,679 28 29. Total liabilities and equity capital (sum of items 21 and 28) RCFD 3300 58,483,415 29
Memorandum To be reported only with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external Number auditors as of any date during 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 6724.........N/A M.1 1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other with generally accepted auditing standards by a certified external auditors (may be required by state chartering public accounting firm which submits a report on the bank authority) 2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external conducted in accordance with generally accepted auditing auditors standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external submits a report on the consolidated holding company auditors (but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work) 3 = Directors' examination of the bank conducted in 8 = No external audit work accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority)
____________________ (1) Includes total demand deposits and noninterest-bearing time and savings deposits. (2) Includes limited-life preferred stock and related surplus. -----END PRIVACY-ENHANCED MESSAGE-----