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Exhibit 4.3
KOGER EQUITY, INC.
TO
---------------------
TRUSTEE
INDENTURE
DATED AS OF __________________, 200___
SENIOR DEBT SECURITIES
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101.
Definitions.........................................................................................2
Section 102. Compliance Certificates and
Opinions...............................................................11
Section 103. Form of Documents Delivered to
Trustee.............................................................12
Section 104. Acts of
Holders....................................................................................12
Section 105. Notices, etc., to Trustee and
Company..............................................................14
Section 106. Notice to Holders;
Waiver..........................................................................14
Section 107. Effect of Headings and Table of
Contents...........................................................15
Section 108. Successors and
Assigns.............................................................................15
Section 109. Separability
Clause................................................................................15
Section 110. Benefits of
Indenture..............................................................................16
Section 111. No Personal
Liability..............................................................................16
Section 112. Governing
Law......................................................................................16
Section 113. Legal
Holidays.....................................................................................16
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms of
Securities................................................................................17
Section 202. Form of Trustee's Certificate of
Authentication....................................................17
Section 203. Securities Issuable in Global
Form.................................................................17
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in
Series...............................................................19
Section 302.
Denominations......................................................................................22
Section 303. Execution, Authentication Delivery
and
Dating......................................................23
Section 304. Temporary
Securities...............................................................................25
Section 305. Registration, Registration of
Transfer and
Exchange................................................27
Section 306. Mutilated, Destroyed, Lost and
Stolen
Securities...................................................30
Section 307. Payment of Interest; Interest
Rights
Preserved.....................................................31
Section 308. Persons Deemed
Owners..............................................................................33
Section 309.
Cancellation.......................................................................................34
Section 310. Computation of
Interest............................................................................34
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of
Indenture............................................................35
Section 402. Application of Company
Funds.......................................................................36
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ARTICLE FIVE
REMEDIES
Section 501. Events of
Default..................................................................................37
Section 502. Acceleration of Maturity;
Rescission and
Annulment.................................................38
Section 503. Collection of Indebtedness and
Suits for Enforcement by
Trustee....................................39
Section 504. Trustee May File Proofs of
Claim...................................................................40
Section 505. Trustee May Enforce Claims Without
Possession of Securities or
Coupons.............................41
Section 506. Application of Money
Collected.....................................................................41
Section 507. Limitation on
Suits................................................................................42
Section 508. Unconditional Right of Holders to
Receive Principal, Premium or Make- Whole
Amount, if any, Interest and Additional
Amounts................................................42
Section 509. Restoration of Rights and
Remedies.................................................................42
Section 510. Rights and Remedies
Cumulative.....................................................................43
Section 511. Delay or Omission Not
Waiver.......................................................................43
Section 512. Control by Holders of
Securities...................................................................43
Section 513. Waiver of Past
Defaults............................................................................43
Section 514. Waiver of Usury, Stay or Extension
Laws............................................................44
Section 515. Undertaking for
Costs..............................................................................44
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of
Defaults.................................................................................45
Section 602. Certain Rights of
Trustee..........................................................................45
Section 603. Not Responsible for Recitals or
Issuance of
Securities.............................................46
Section 604. May Hold
Securities................................................................................46
Section 605. Money Held in
Trust................................................................................47
Section 606. Compensation and
Reimbursement.....................................................................47
Section 607. Corporate Trustee Required;
Eligibility; Conflicting
Interests.....................................47
Section 608. Resignation and Removal;
Appointment of
Successor..................................................48
Section 609. Acceptance of Appointment By
Successor.............................................................49
Section 610. Merger, Conversion, Consolidation
or Succession to
Business........................................50
Section 611. Appointment of Authenticating
Agent................................................................51
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses
of
Holders.......................................................53
Section 702. Reports by
Trustee.................................................................................53
Section 703. Reports by
Trust...................................................................................53
Section 704. Company to Furnish Trustee Names
and Addresses of
Holders..........................................54
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ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 801. Consolidations and Mergers of
Company and Sales, Leases and Conveyances
Permitted Subject to Certain
Conditions........................................................55
Section 802. Rights and Duties of Successor
Corporation.........................................................55
Section 803. Officers' Certificate and Opinion
of
Counsel.......................................................56
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without
Consent of
Holders.................................................57
Section 902. Supplemental Indentures with
Consent of
Holders....................................................58
Section 903. Execution of Supplemental
Indentures...............................................................59
Section 904. Effect of Supplemental
Indentures..................................................................59
Section 905. Conformity with Trust Indenture
Act................................................................60
Section 906. Reference in Securities to
Supplemental
Indentures.................................................60
Section 907. Notice of Supplemental
Indentures..................................................................60
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium or
Make-Whole Amount, if any, Interest and Additional
Amounts.......61
Section 1002. Maintenance of Office or
Agency...................................................................61
Section 1003. Money for Securities Payments to
Be Held in
Trust.................................................63
Section 1004. Limitations on Incurrence of
Debt.................................................................64
Section 1005.
Existence.........................................................................................65
Section 1006. Maintenance of
Properties.........................................................................65
Section 1007.
Insurance.........................................................................................66
Section 1008. Payment of Taxes and Other
Claims.................................................................66
Section 1009. Provision of Financial
Information................................................................66
Section 1010. Statement as to
Compliance........................................................................67
Section 1011. Additional
Amounts................................................................................67
Section 1012. Waiver of Certain
Covenants.......................................................................68
ARTICLE
ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of
Article..........................................................................69
Section 1102. Election to Redeem; Notice to
Trustee.............................................................69
Section 1103. Selection by Trustee of Securities
to Be
Redeemed.................................................69
Section 1104. Notice of
Redemption..............................................................................69
Section 1105. Deposit of Redemption
Price.......................................................................71
Section 1106. Securities Payable on Redemption
Date.............................................................71
Section 1107. Securities Redeemed in
Part.......................................................................72
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of
Article..........................................................................73
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Section 1202. Satisfaction of Sinking Fund
Payments with
Securities.............................................73
Section 1203. Redemption of Securities for
Sinking
Fund.........................................................73
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of
Article..........................................................................75
Section 1302. Repayment of
Securities...........................................................................75
Section 1303. Exercise of
Option................................................................................75
Section 1304. SECTION 1304. When Securities
Presented for Repayment Become Due and
Payable......................76
Section 1305. Securities Repaid in
Part.........................................................................77
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Applicability of Article;
Company's Option to Effect Defeasance or Covenant
Defeasance............78
Section 1402. Defeasance and
Discharge..........................................................................78
Section 1403. Covenant
Defeasance...............................................................................79
Section 1404. Conditions to Defeasance or
Covenant
Defeasance...................................................79
Section 1405. Deposited Money and Government
Obligations to Be Held in Trust; Other Miscellaneous
Provisions....81
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be
Called.........................................................83
Section 1502. Call, Notice and Place of
Meetings................................................................83
Section 1503. Persons Entitled to Vote at
Meetings..............................................................83
Section 1504. Quorum;
Action....................................................................................83
Section 1505. Determination of Voting Rights;
Conduct and Adjournment of
Meetings...............................85
Section 1506. Counting Votes and Recording
Action of
Meetings...................................................85
Section 1507. Evidence of Action Taken by
Holders...............................................................86
Section 1508. Proof of Execution of
Instruments.................................................................86
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TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A -- FORMS OF CERTIFICATION
(iv)
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KOGER EQUITY, INC.
Reconciliation and tie between Company
Indenture Act of 1939, as amended (the
"1939 Act"), and Indenture, dated as of
_________ , ____
Company Indenture Act Section
Indenture Section
-----------------------------
-----------------
Section 310
(a)(1)............................................ 607(a)
(a)(2)............................................ 607(a)
(b).......................................... 607(b), 608
Section 312
(c).................................................. 701
Section 314
(a).................................................. 703
(a)(4).............................................. 1011
(c)(1)............................................... 102
(c)(2)............................................... 102
(e).................................................. 102
Section 315
(b).................................................. 601
Section 316 (a)
(last sentence).................. 101 ("Outstanding")
(a)(1)(A)....................................... 502, 512
(a)(1)(B)............................................ 513
(b).................................................. 508
Section 317
(a)(1)............................................... 503
(a)(2)............................................... 504
Section 318
(a).................................................. 112
(c).................................................. 112
----------------------------------------------------
NOTE: This reconciliation
and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939
Act,
which provides that the provisions of Sections 310 to and including
317
of the 1939 Act are a part of and govern every qualified
indenture,
whether or not physically contained therein.
(v)
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INDENTURE, dated as of ___________________, 200__, between
KOGER
EQUITY, INC., a Florida corporation
(hereinafter called the "Company"), having
its principal office at 225 NE Mizner
Boulevard, Suite 200, Boca Raton, Florida
33432 and _____________________________, a
________ banking ___________, as
Trustee hereunder (hereinafter called the
"Trustee"), having its Corporate Trust
Office at
__________________________________________.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for
its
lawful purposes senior debt securities
(hereinafter called the "Securities")
evidencing its unsecured and unsubordinated
indebtedness, and has duly
authorized the execution and delivery of
this Indenture to provide for the
issuance from time to time of the
Securities, unlimited as to aggregate
principal amount, to bear interest at the
rates or formulas, to mature at such
times and to have such other provisions as
shall be fixed therefor as
hereinafter provided.
All things necessary to make this Indenture a valid agreement of
the
Company, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the
Securities by the Holders thereof, it is
mutually covenanted and agreed, for the
equal and proportionate benefit of all
Holders of the Securities, as follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION
101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly
provided or the context otherwise
requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the
singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned
to
them therein, and the terms "cash transaction" and
"self-liquidating
paper," as used in TIA Section 311, shall have the meanings
assigned to
them in the rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to
any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five,
Article
Six and Article Ten, are defined in those
Articles. In addition, the following
terms shall have the indicated respective
meanings:
"Acquired Debt" means Debt of a Person (i) existing at the time
such
Person becomes a Subsidiary or (ii) assumed
in connection with the acquisition
of assets from such Person, in each case,
other than Debt incurred in connection
with, or in contemplation of, such Person
becoming a Subsidiary or such
acquisition. Acquired Debt shall be deemed
to be incurred on the date of the
related acquisition of assets from any
Person or the date the acquired Person
becomes a Subsidiary.
"Act" has the meaning specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by
a Security, under circumstances specified
therein, to be paid by the Company in
respect of certain taxes imposed on certain
Holders and which are owing to such
Holders.
"Affiliate" of any specified Person means any other Person directly
or
indirectly controlling or controlled by or
under direct or indirect common
control with such specified Person. For the
purposes of this definition,
"control" when used with respect to any
specified Person means the power to
direct the management and policies of such
Person, directly or
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indirectly, whether through the ownership
of voting securities, by contract or
otherwise; and the terms "controlling" and
"controlled" have meanings
correlative to the foregoing.
"Annual Service Charge" as of any date means the maximum amount
which
is payable in any period for interest on,
and original issue discount of, Debt
of the Company and its Subsidiaries and the
amount of dividends which are
payable in respect of any Disqualified
Stock.
"Authenticating Agent" means any authenticating agent appointed by
the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the
English
language or in an official language of the
country of publication, customarily
published on each Business Day, whether or
not published on Saturdays, Sundays
or holidays, and of general circulation in
each place in connection with which
the term is used or in the financial
community of each such place. Whenever
successive publications are required to be
made in Authorized Newspapers, the
successive publications may be made in the
same or in different Authorized
Newspapers in the same city meeting the
foregoing requirements and in each ease
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means a Security which is payable to bearer.
"Board of Directors" means the Board of Directors of the Company,
the
executive committee or any other committee
of that board duly authorized to act
for it in respect hereof.
"Board Resolution" means a copy of a resolution certified by
the
Secretary or an Assistant Secretary of the
Company to have been duly adopted by
the Board of Directors, and to be in full
force and effect on the date of such
certification, and delivered to the
Trustee.
"Business Day," when used with respect to any Place of Payment or
any
other particular location referred to in
this Indenture or in the Securities,
means, unless otherwise specified with
respect to any Securities pursuant to
Section 301, any day, other than a Saturday
or Sunday, that is neither a legal
holiday nor a day on which banking
institutions in that Place of Payment or
particular location are authorized or
required by law, regulation or executive
order to close.
"Capital Stock" means, with respect to any Person, any capital
stock
(including preferred stock), shares,
interests, participations or other
ownership interests (however designated) of
such Person and any rights (other
than debt securities convertible or
exchangeable for corporate stock), warrants
or options to purchase any thereof.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or
its
successor.
"Commission" means the Securities and Exchange Commission, as from
time
to time constituted, created under the
Exchange Act, or, if at any time after
execution of this instrument such
Commission is not existing and performing the
duties now assigned to it under the Trust
Indenture Act, then the body
performing such duties on such date.
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"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a
successor corporation shall have become such
pursuant to the applicable provisions of
this Indenture, and thereafter
"Company" shall mean such successor
corporation.
"Company Request" and "Company Order" mean, respectively, a
written
request or order signed in the name of the
Company by the President or a Vice
President of the Company, and by the
Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the
Company, and delivered to the
Trustee.
"Consolidated Income Available for Debt Service" for any period
means
Funds from Operations of the Company and
its Subsidiaries plus amounts which
have been deducted for interest on Debt of
the Company and its Subsidiaries.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency
(other than the ECU or other currency unit)
both by the government of the
country which issued such currency and for
the settlement of transactions by a
central bank or other public institutions
of or within the international banking
community, (ii) the ECU both within the
European Monetary System and for the
settlement of transactions by public
institutions of or within the European
Communities or (iii) any currency unit (or
composite currency) other than the
ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at which,
at
any particular time, its corporate trust
business shall be principally
administered, at which the principal of
(and Make-Whole Amount, if any),
interest, if any, on, and Additional
Amounts, if any, payable in respect of,
Securities of or within a series shall be
payable and any Registered Securities
of or within such series may be surrendered
for registration of transfer or
exchange, and at which notices or demands
to or upon the Company in respect of
the Securities of or within a series and
this Indenture may be served, which
office at the date hereof is located at
_______________________________________________________.
"Corporation" includes corporations, associations, companies
and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning set forth in Section 501.
"Debt" of the Company or any Subsidiary means any indebtedness of
the
Company or any Subsidiary, whether or not
contingent, in respect of (without
duplication) (i) borrowed money or
evidenced by bonds, notes, debentures or
similar instruments, (ii) indebtedness
secured by any mortgage, pledge, lien,
charge, encumbrance or any security
interest existing on property owned by the
Company or any Subsidiary, (iii) the
reimbursement obligations, contingent or
otherwise, in connection with any letters
of credit actually issued or amounts
representing the balance deferred and
unpaid of the purchase price of any
property or services, except any such
balance that constitutes an accrued
expense or trade payable, or all
conditional sale obligations or obligations
under any title retention agreement, (iv)
the principal amount of all
obligations of the Company or any
Subsidiary with respect to redemption,
repayment or other repurchase of any
Disqualified Stock or (v) any lease of
property by the Company or any Subsidiary
as lessee which is reflected on the
Company's consolidated balance sheet as a
capitalized lease in
4
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accordance with GAAP to the extent, in the
case of items of indebtedness under
(i) through (iii) above, that any such
items (other than letters of credit)
would appear as a liability on the
Company's consolidated balance sheet in
accordance with GAAP, and also includes, to
the extent not otherwise included,
any obligation by the Company or any
Subsidiary to be liable for, or to pay, as
obligor, guarantor or otherwise (other than
for purposes of collection in the
ordinary course of business), Debt of
another Person (other than the Company or
any Subsidiary).
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" means, with respect to any Person, any
Capital
Stock of such Person which by the terms of
such Capital Stock (or by the terms
of any security into which it is
convertible or for which it is exchangeable or
exercisable), upon the happening of any
event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, (ii)
is convertible into or exchangeable or
exercisable for Debt or Disqualified
Stock or (iii) is redeemable at the option
of the holder thereof, in whole or in
part, in each case on or prior to the
Stated Maturity of the series of Debt
Securities.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or
currency of the United States of America as
at the time shall be legal tender
for payment of public and private
debts.
"DTC" means The Depository Trust Company.
"ECU" means the European Currency Unit as defined and revised from
time
to time by the Council of the European
Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels
Office, or its successor as operator of the
Euroclear System.
"European Communities" means the European Economic Community,
the
European Coal and Steel Community and the
European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December
5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended,
and the rules and regulations promulgated
thereunder by the Commission.
"Foreign Currency" means any currency, currency unit or
composite
currency, including, without limitation,
the ECU, issued by the government of
one or more countries other than the United
States of America or by any
recognized confederation or association of
such governments.
"Funds from Operations" for any period means income before
gains
(losses) on investments and extraordinary
items plus amounts which have been
deducted, and minus amounts which have been
added, for the following items
(without duplication): (a) provision
for
5
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Preferred Stock dividends, (b) provision
for property depreciation and
amortization and (c) the effect of any
adjustments for significant non-recurring
items, including any noncash charge
resulting from a change in accounting
principles in determining income before
gains (losses) on investments and
extraordinary items for such period, as
reflected in the financial statements of
the Company and its Subsidiaries for such
period determined on a consolidated
basis in accordance with GAAP.
"GAAP" means generally accepted accounting principles as used in
the
United States applied on a consistent basis
as in effect from time to time;
provided, that solely for purposes of any
calculation required by the financial
covenants contained herein, "GAAP" shall
mean generally accepted accounting
principles as used in the United States on
the date hereof, applied on a
consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America
or the government which issued the
Foreign Currency in which the 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 States of America or such
government which issued the Foreign
Currency in which the 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.
"Holder" means, in the case of a Registered Security, the Person
in
whose name a Security is registered in the
Security Register and, in the case of
a Bearer Security, the bearer thereof and,
when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or 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,
and shall include the terms of particular
series of Securities established as
contemplated by Section 301; provided,
however, that, if at any time more than
one Person is acting as Trustee under this
instrument, "Indenture" shall mean,
with respect to any one or more series of
Securities for which such Person is
Trustee, this instrument as originally
executed or 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 and shall include the terms of
the or those particular series of
Securities for which such Person is Trustee
established as contemplated by Section 301,
exclusive, however, of any
provisions or terms which relate solely to
other series of Securities for which
such Person is not Trustee, regardless of
when such terms or provisions were
adopted, and exclusive of any provisions or
terms adopted by means of one or
more indentures supplemental hereto
executed and delivered
6
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after such Person had become such Trustee
but to which such Person, as such
Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
the
principal amount thereof payable at Stated
Maturity may be more or less than the
principal face amount thereof at original
issuance.
"Interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest
only after Maturity, shall mean
interest payable after Maturity, and, when
used with respect to a Security which
provides for the payment of Additional
Amounts pursuant to Section 1011,
includes such Additional Amounts.
"Interest Payment Date" means, when used with respect to any
Security,
the Stated Maturity of an installment of
interest on such Security.
"Make-Whole Amount" means the amount, if any, in addition to
principal
which is required by a Security, under the
terms and conditions specified
therein or as otherwise specified as
contemplated by Section 301, to be paid by
the Company to the Holder thereof in
connection with any optional redemption or
accelerated payment of such Security.
"Maturity" means, when used with respect to any Security, the date
on
which the principal of such Security or an
installment of principal become due
and payable as therein or herein provided,
whether at the Stated Maturity or by
declaration of acceleration, notice of
redemption, notice of option to elect
repayment, repurchase or otherwise.
"Officers' Certificate" means a certificate signed by the President
or
a Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary of
an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
an
employee of or counsel for the Company or
other counsel satisfactory to the
Trustee.
"Original Issue Discount Security" means any Security which
provides
for an amount less than the principal
amount thereof to be due and payable upon
a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of
the
date of determination, all Securities
theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in
the
necessary amount has been theretofore deposited with the Trustee or
any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own
Paying Agent) for the holders of such Securities and any
coupons
appertaining thereto; provided that, if such Securities are to
be
redeemed, notice of such redemption
7
<PAGE>
has been duly given pursuant to this Indenture or other
provision
therefor satisfactory to the Trustee has been made;
(iii) Securities, except solely to the extent provided in
Sections 1402 or 1403, as applicable, with respect to which the
Company
has effected defeasance and/or covenant defeasance as provided
in
Article Fourteen;
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have
been
authenticated and delivered pursuant to this Indenture, other than
any
such Securities in respect of which there shall have been presented
to
the Trustee proof satisfactory to it that such Securities are held
by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(v) Securities converted into Capital Stock of the Company
pursuant to or in accordance with this Indenture if the terms of
such
Securities provide for convertibility pursuant to Section 301;
provided, however, that in determining
whether the Holders of the requisite
principal amount of the Outstanding
Securities have given any request, demand,
authorization, direction, notice, consent
or waiver hereunder or are present at
a meeting of Holders for quorum purposes,
and for the purpose of making the
calculations required by TIA Section 313,
(i) the principal amount of an
Original Issue Discount Security that may
be counted in making such
determination or calculation and that shall
be deemed to be Outstanding for such
purpose shall be equal to the amount of
principal thereof that would be (or
shall have been declared to be) due and
payable, at the time of such
determination, upon a declaration of
acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal
amount of any Security denominated
in a Foreign Currency that may be counted
in making such determination or
calculation and that shall be deemed
Outstanding for such purpose shall be equal
to the Dollar equivalent, determined
pursuant to Section 301 as of the date such
Security is originally issued by the
Company, of the principal amount (or, in
the case of an Original Issue Discount
Security, the Dollar equivalent as of
such date of original issuance of the
amount determined as provided in clause
(i) above) of such Security, (iii) the
principal amount of any Indexed Security
that may be counted in making such
determination or calculation and that shall
be deemed outstanding for such purpose
shall be equal to the principal face
amount of such Indexed Security at original
issuance, unless otherwise provided
with respect to such Indexed Security
pursuant to Section 301, and (iv)
Securities owned by the Company or any
other obligor upon the Securities or any
Affiliate of the Company or of such other
obligor shall be disregarded and
deemed not to be Outstanding, except that,
in determining whether the Trustee
shall be protected in making such
calculation or in relying upon any such
request, demand, authorization, direction,
notice, consent or waiver, only
Securities which the Trustee knows to be so
owned shall be so disregarded.
Securities so owned which have been pledged
in good faith may be regarded as
Outstanding if the pledgee establishes to
the satisfaction of the Trustee the
pledgee's right so to act with respect to
such Securities and that the pledgee
is not the Company or any other obligor
upon the Securities or any Affiliate of
the Company or of such other obligor.
8
<PAGE>
"Paying Agent" means any Person authorized by the Company to pay
the
principal of (and premium or Make-Whole
Amount, if any) or interest on any
Securities or coupons on behalf of the
Company, or if no such Person is
authorized, the Company.
"Person" means any individual, corporation, partnership,
limited
liability company, joint venture,
association, joint-stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
"Place of Payment" means, when used with respect to the Securities
of
or within any series, the place or places
where the principal of (and premium or
Make-Whole Amount, if any) and interest on
such Securities are payable as
specified as contemplated by Sections 301
and 1002.
"Predecessor Security" of any particular Security means every
previous
Security evidencing all or a portion of the
same debt as that evidenced by such
particular Security; and, for the purposes
of this definition, any Security
authenticated and delivered under Section
306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen
Security or a Security to which a
mutilated, destroyed, lost or stolen coupon
appertains shall be deemed to
evidence the same debt as the mutilated,
destroyed, lost or stolen Security or
the Security to which the mutilated,
destroyed, lost or stolen coupon
appertains.
"Redemption Date" means, when used with respect to any Security to
be
redeemed in whole or in part, the date
fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price" means, when used with respect to any Security to
be
redeemed, the price at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" means any Security which is registered in
the
Security Register.
"Regular Record Date" for the installment of interest payable on
any
Interest Payment Date on the Registered
Securities of or within any series means
the date specified for that purpose as
contemplated by Section 301, whether or
not a Business Day.
"Repayment Date" means, when used with respect to any Security to
be
repaid or repurchased at the option of the
Holder, the date fixed for such
repayment or repurchase by or pursuant to
this Indenture.
"Repayment Price" means, when used with respect to any Security to
be
repaid or purchased at the option of the
Holder, the price at which it is to be
repaid or repurchased by or pursuant to
this Indenture.
"Responsible Officer" means, when used with respect to the Trustee,
any
officer of the Trustee assigned by the
Trustee to administer its corporate trust
matters.
"Securities Act" means the Securities Act of 1933, as amended, and
the
rules and regulations promulgated
thereunder by the Commission.
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<PAGE>
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any
Security or Securities authenticated
and delivered under this Indenture;
provided, however, that, if at any time
there is more than one Person acting as
Trustee under this Indenture,
"Securities" with respect to the Indenture
as to which such Person is Trustee
shall have the meaning stated in the first
recital of this Indenture and shall
more particularly mean Securities
authenticated and delivered under this
Indenture, exclusive, however, of
Securities of or within any series as to which
such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective
meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a
"significant
subsidiary" (within the meaning of
Regulation S-X, promulgated under the
Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on
the
Registered Securities of or within any
series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity" means, when used with respect to any Security or
any
installment of principal thereof or
interest thereon, the date specified in such
Security or a coupon representing such
installment of interest as the fixed date
on which the principal of such Security or
such installment of principal or
interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation
or
other entity of which a majority of (a) the
voting power of the voting equity
securities or (b) the outstanding equity
interests of which are owned, directly
or indirectly, by such Person. For the
purposes of this definition, "voting
equity securities" means equity securities
having voting power for the election
of directors, whether at all times or only
so long as no senior class of
security has such voting power by reason of
any contingency.
"Total Assets" as of any date means the sum of (i) the
Company's
Undepreciated Real Estate Assets and (ii)
all other assets of the Company
determined in accordance with GAAP (but
excluding intangibles).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939,
as amended and as in force at the date as
of which this Indenture was executed,
except as provided in Section 905.
"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 or include each Person
who is then a Trustee hereunder;
provided, however, that if at any time
there is more than one such Person,
"Trustee" as used with respect to the
Securities of or within any series shall
mean only the Trustee with respect to the
Securities of that
series.
"Undepreciated Real Estate Assets" as of any date means the
cost
(original cost plus capital improvements)
of real estate assets of the Company
and its Subsidiaries on such date, before
depreciation and amortization
determined on a consolidated basis in
accordance with GAAP.
10
<PAGE>
"United States" means, unless otherwise specified with respect to
any
Securities pursuant to Section 301, the
United States of America (including the
states and the District of Columbia), its
territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect
to any Securities pursuant to Section 301,
an individual who is a citizen or
resident of the United States, a
corporation, partnership or other entity
created or organized in or under the laws
of the United States or an estate or
trust the income of which is subject to
United States federal income taxation
regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the
time
of issuance of a Security (or, if
applicable, at the most recent redetermination
of interest on such Security) and as set
forth in such Security in accordance
with generally accepted United States bond
yield computation principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take
any action under any provision of this
Indenture, the Company shall furnish to
the Trustee an Officers' Certificate
stating that all conditions precedent, if
any, provided for in this Indenture
(including covenants, compliance with which
constitute conditions 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 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 (excluding certificates
delivered pursuant to Section 1010) shall
include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the
definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable
him to express an informed opinion as to whether or not such
condition
or covenant has been complied with; and
(4)
a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
11
<PAGE>
SECTION 103. 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
as to some matters and one or more
other such Persons as to other matters, and
any such Person may certify or give
an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based,
insofar as it relates to legal matters,
upon an Opinion of Counsel, or a
certificate or representations by counsel,
unless such officer knows, or in the
exercise of reasonable care should know,
that the opinion, certificate or
representations with respect to the matters
upon which his certificate or
opinion is based are erroneous. Any such
Opinion of Counsel or certificate or
representations may be based, insofar as it
relates to factual matters, upon a
certificate or opinion of, or
representations by, an officer or officers of the
Company stating that the information as to
such factual matters is in the
possession of the Company, unless such
counsel knows that the certificate or
opinion or representations as to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more
applications, requests, consents,
certificates, statements, opinions or other
instruments under this Indenture, they may,
but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given
or taken by Holders of the Outstanding Securities of all series or
one
or more series, as the case may be, may be embodied in and
evidenced by
one or more instruments of substantially similar tenor signed by
such
Holders in
person or by agents duly appointed in writing. If Securities
of a series are issuable as Bearer Securities, any request,
demand,
authorization, direction, notice, consent, waiver or other
action
provided by this Indenture to be given or taken by Holders of
Securities of such series may, alternatively, be embodied in
and
evidenced by the record of Holders of Securities of such series
voting
in favor thereof, whether in person or by proxies duly appointed
in
writing, at any meeting of Holders of Securities of such series
duly
called and held in accordance with the provisions of Article
Fifteen,
or a combination of such instruments and any such record. Except
as
herein
otherwise expressly provided, such action shall become
effective
when such instrument or instruments or record or both instruments
or
record or both are delivered to the Trustee and, where it is
hereby
expressly required, to the Company. Such instrument or instrument
and
any such record (and the action embodied therein and evidenced
thereby)
are herein sometimes referred to as the "Act" of the Holders
signing
such instrument or instruments or so voting at any such meeting.
Proof
of execution of any such instrument or of a writing appointing any
such
agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and conclusive in
favor of
the Trustee and the Company and any agent of the Trustee or the
Company, if made in the manner
12
<PAGE>
provided in this Section. The record of any meeting of Holders
of
Securities shall be proved in the manner provided in Section
1506.
(2) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness
of such execution or by a certificate of a notary public or
other
officer authorized by law to take acknowledgements of deeds,
certifying
that the individual signing such instrument or writing acknowledged
to
him the execution thereof. Where such execution is by a signer
acting
in a capacity other than his individual capacity, such certificate
or
affidavit shall also constitute sufficient proof of his authority.
The
fact and date of the execution of any such instrument or writing,
or
the authority of the Person executing the same, may also be proved
in
any other reasonable manner which the Trustee deems sufficient.
(3) The ownership of Registered Securities shall be proved by
the
Security Register.
(4) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed,
as
depositary, by any trust company, bank, banker or other
depositary,
wherever situated, if such certificate shall be deemed by the
Trustee
to be satisfactory, showing that at the date therein mentioned
such
Person had on deposit with such depositary, or exhibited to it,
the
Bearer Securities therein described; or such facts may be proved by
the
certificate or affidavit of the Person holding such Bearer
Securities,
if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of
the
same Bearer Security is produced, or (2) such Bearer Security
is
produced to the Trustee by some other Person, or (3) such
Bearer
Security is surrendered in exchange for a Registered Security, or
(4)
such Bearer Security is no longer Outstanding. The ownership of
Bearer
Securities may also be proved in any other manner which the
Trustee
deems sufficient.
(5) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization,
direction,
notice, consent, waiver or other Act, the Company may, at its
option,
in or pursuant to a Board Resolution, fix in advance a record date
for
the determination of Holders entitled to give such request,
demand,
authorization, direction, notice, consent, waiver or other Act, but
the
Company shall have no obligation to do so. Notwithstanding TIA
Section
316(c), such record date shall be the record date specified in
or
pursuant to such Board Resolution, which shall be a date not
earlier
than the date 30 days prior to the first solicitation of
Holders
generally in connection therewith and not later than the date
such
solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver
or
other Act may be given before or after such record date, but only
the
Holders of record at the close of business on such record date
shall be
deemed to be Holders for the purposes of determining whether
Holders of
the requisite proportion of Outstanding Securities have authorized
or
agreed or consented to such request, demand, authorization,
direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record
date;
provided that no such authorization,
13
<PAGE>
agreement or consent by the Holders on such record date shall be
deemed
effective unless it shall become effective pursuant to the
provisions
of this Indenture not later than eleven months after the record
date.
(6) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall
bind
every future Holder of the same Security and the Holder of
every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything
done,
omitted or suffered to be done by the Trustee, any Security
Registrar,
any Paying Agent, any Authenticating Agent or the Company in
reliance
thereon, whether or not notation of such action is made upon
such
Security.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver
or Act of Holders or other document
provided or permitted by this Indenture to
be made upon, given or furnished to, or
filed with,
(1) The Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or
filed in writing to or with the Trustee at its Corporate Trust
Office,
Attention: Corporate Trust Operations, or
(2) The Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class
postage
prepaid, to the Company addressed to it at the address of its
principal
office specified in the first paragraph of this Indenture or at
any
other address previously furnished in writing to the Trustee by
the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders
of
Registered Securities by the Company or the
Trustee, such notice shall be
sufficiently given (unless otherwise herein
expressly provided) if in writing
and mailed, first-class postage prepaid, to
each such Holder affected by such
event, at his address as it appears in the
Security 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 of Registered Securities 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 of
Registered Securities or the sufficiency
of any notice to Holders of Bearer
Securities given as provided herein. Any
notice mailed to a Holder in the manner
herein prescribed shall be conclusively
deemed to have been received by such
Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular
mail
service or by reason of any other cause it
shall be impracticable to give such
notice by mail, then such notification to
Holders of Registered Securities as
shall be made with the approval of the
Trustee shall constitute a sufficient
notification to such Holders for every
purpose hereunder.
14
<PAGE>
Except as otherwise expressly provided herein or otherwise
qualified
with respect to any Securities pursuant to
Section 301, where this Indenture
provides for notice to Holders of Bearer
Securities of any event, such notices
shall be sufficiently given if published in
an Authorized Newspaper in The City
of New York and in such other city or
cities as may be specified in such
Securities, and if the Securities of such
series are listed on any stock
exchange outside the United States, in any
place at which such Securities are
listed on a securities exchange to the
extent that such securities exchange so
requires, on a Business Day, such
publication to be not later than the latest
date, and not earlier than the earliest
date, prescribed for the giving of such
notice. Any such notice shall be deemed to
have been given on the date of such
publication or, if published more than
once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by
reason of any other cause it shall be
impracticable to publish any notice to
Holders of Bearer Securities as provided
above, then such notification to Holders of
Bearer Securities as shall be given
with the approval of the Trustee shall
constitute sufficient notice to such
Holders for every purpose hereunder.
Neither the failure to give notice by
publication to any particular Holder of
Bearer Securities as provided above, nor
any defect in any notice so published,
shall affect the sufficiency of such
notice with respect to other Holders of
Bearer Securities or the sufficiency of
any notice to Holders of Registered
Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or
waiver required or permitted under this
Indenture shall be in the English
language, except that any published notice
may be in an official language of the
country of publication.
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.
SECTION 107. 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 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall
bind its successors and assigns, whether so
expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Security or
coupon
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.
15
<PAGE>
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons
appertaining
thereto, express or implied, shall give to
any Person, other than the parties
hereto, any Security Registrar, any Paying
Agent, any Authenticating Agent and
their successors hereunder and the Holders
any benefit or any legal or equitable
right, remedy or claim under this
Indenture.
SECTION 111. No
Personal Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any
Security or coupon appertaining thereto, or
because of any indebtedness evidenced
thereby, shall be had against any
promoter, as such or, against any past,
present or future shareholder, officer
or director, as such, of the Company or of
any successor, either directly or
through the Company or any successor, under
any rule of law, statute or
constitutional provision or by the
enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all
such liability being expressly waived
and released by the acceptance of the
Securities by the Holders thereof and as
part of the consideration for the issue of
the Securities.
SECTION 112. Governing Law.
This Indenture and the Securities and coupons shall be governed by
and
construed in accordance with the law of the
State of Florida. This Indenture is
subject to the provisions of the TIA that
are required to be part of this
Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repayment
Date, sinking fund payment date, Stated
Maturity or Maturity of any Security
shall not be a Business Day at any Place of
Payment, then (notwithstanding any
other provision of this Indenture or any
Security or coupon other than a
provision in the Securities of any series
which specifically states that such
provision shall apply in lieu hereof),
payment of interest or any Additional
Amounts or principal (and premium or
Make-Whole Amount, if any) need not be made
at such Place of Payment on such date, but
may be made on the next succeeding
Business Day at such Place of Payment with
the same force and effect as if made
on the Interest Payment Date, Redemption
Date, Repayment Date or sinking fund
payment date, or at the Stated Maturity or
Maturity, provided that no interest
shall accrue on the amount so payable for
the period from and after such
Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment
date, Stated Maturity or Maturity, as the
case may be.
16
<PAGE>
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.
The Registered Securities, if any, of each series and the
Bearer
Securities, if any, and related coupons of
each series, shall be in
substantially the forms as shall be
established in or pursuant to one or more
indentures supplemental hereto or Board
Resolutions, shall have such appropriate
insertions, omissions, substitutions and
other variations as are required or
permitted by this Indenture or any
indenture supplemental hereto, and may have
such letters, numbers or other marks of
identification or designation and such
legends or endorsements placed thereon as
the Company may deem appropriate and
as are not inconsistent with the provisions
of this Indenture, or as may be
required to comply with any law or with any
rule or regulation made pursuant
thereto or with any rule or regulation of
any stock exchange on which the
Securities may be listed, or to conform to
usage.
Unless otherwise specified as contemplated by Section 301,
Bearer
Securities shall have interest coupons
attached.
The definitive Securities and coupons shall be printed,
lithographed or
engraved or produced by any combination of
these methods on a steel engraved
border or steel engraved borders or may be
produced in any other manner, all as
determined by the officers executing such
Securities or coupons, as evidenced by
their execution of such Securities or
coupons.
SECTION 202. Form of
Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of
authentication
shall be in substantially the following
form:
This is one of the securities of the series designated therein
referred
to in the within-mentioned Indenture.
_____________________________________, as
Trustee
By
--------------------------------------
Authorized Signatory
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form,
as
specified as contemplated by Section 301,
then, notwithstanding clause (H) of
Section 301 and the provisions of Section
302, any such Security shall represent
such of the Outstanding Securities of such
series as shall be specified therein
and may provide that it shall represent the
aggregate amount of Outstanding
Securities of such series from time to time
endorsed thereon and that the
aggregate amount of Outstanding Securities
of such series represented thereby
may from time to time be increased or
17
<PAGE>
decreased to reflect exchanges. Any
endorsement of a Security in global form to
reflect the amount, or any increase or
decrease in the amount, of Outstanding
Securities represented thereby shall be
made by the Trustee in such manner and
upon instructions given by such Person or
Persons as shall be specified therein
or in the Company Order to be delivered to
the Trustee pursuant to Section 303
or 304. Subject to the provisions of
Section 303 and, if applicable, the Trustee
shall deliver and redeliver any Security in
permanent global form in the manner
and upon instructions given by the Person
or Persons specified therein or in the
applicable Company Order. If a Company
Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any
instructions by the Company with
respect to endorsement or delivery or
redelivery of a Security in global form
shall be in writing but need not comply
with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to
any
Security represented by a Security in
global form if such Security was never
issued and sold by the Company and the
Company delivers to the Trustee the
Security in global form together with
written instructions (which need not
comply with Section 102 and need not be
accompanied by an Opinion of Counsel)
with regard to the reduction in the
principal amount of Securities represented
thereby, together with the written
statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301,
payment of principal of and any
premium or Make-Whole Amount and interest
on any Security in permanent global
form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in
the preceding paragraph, the Company, the
Trustee and any agent of the Company
and the Trustee shall treat as the Holder
of such principal amount of
Outstanding Securities represented by a
permanent global Security (i) in the
case of a permanent global Security in
registered form, the Holder of such
permanent global Security in registered
form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear
or CEDEL.
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated
and delivered under this Indenture is
unlimited.
The Securities may be issued in one or more series. There shall
be
established in or pursuant to one or more
Board Resolutions, or indentures
supplemental hereto, prior to the issuance
of Securities of any series, any or
all of the following, as applicable (each
of which (except for the matters set
forth in clauses (A), (B) and (O) below),
if so provided, may be determined from
time to time by the Company with respect to
unissued Securities of or within the
series when issued from time to time):
(1) the title of the Securities of or within the series (which
shall distinguish the Securities of such series from all other
series
of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of or within the series that may be authenticated
and
delivered under this Indenture (except for Securities authenticated
and
delivered upon registration of transfer of, or in exchange for, or
in
lieu of, other Securities of or within the series pursuant to
Section
304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or
dates will be determined, on which the principal of the Securities
of
or within the series shall be payable and the amount of
principal
payable thereon;
(4) the rate or rates at which the Securities of or within the
series shall bear interest, if any, or the method by which such
rate or
rates shall be determined, the date or dates from which such
interest
shall accrue or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest will
be
payable and the Regular Record Date, if any, for the interest
payable
on any Registered Security on any Interest Payment Date, or the
method
by which such date shall be determined, and the basis upon
which
interest shall be calculated if other than that of a 360-day
year
consisting of twelve 30-day months;
(5) the place or places, if any, other than or in addition to
the Borough of Manhattan, The City of New York, where the principal
of
(and premium or Make-Whole Amount, if any), interest, if any, on,
and
Additional Amounts, if
any, payable in respect of, Securities of or
within the series shall be payable, any Registered Securities of
or
within the series may be surrendered for registration of transfer
or
exchange and notices or demands to or upon the Company in respect
of
the Securities of or within the series and this Indenture may
be
served;
(6) the period or periods within which, the price or prices
(including the premium or Make-Whole Amount, if any) at which,
the
currency or currencies,
19
<PAGE>
currency unit or units or composite currency or currencies in which
and
other terms and conditions upon which Securities of or within
the
series may be redeemed in whole or in part, at the option of
the
Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of or within the series pursuant to any
sinking
fund or analogous provision or at the option of a Holder thereof,
and
the period or periods within which or the date or dates on which,
the
price or prices at which, the currency or currencies, currency unit
or
units or composite currency or currencies in which, and other terms
and
conditions upon which Securities of or within the series shall
be
redeemed, repaid or purchased, in whole or in part, pursuant to
such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered
Securities
of or within the series shall be issuable and, if other than
the
denomination of $5,000, the denomination or denominations in which
any
Bearer Securities of or within the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of or within the series
that
shall be payable upon declaration of acceleration of the
maturity
thereof pursuant to Section 502, or the method by which such
portion
shall be determined;
(11) if other than Dollars, the Foreign 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, on the
Securities of
or within the series shall be payable or in which the Securities of
or
within the series shall be denominated;
(12) whether the amount of payments of principal of (and
premium or Make- Whole Amount, if any) or interest, if any, on
the
Securities of or within the series may be determined with reference
to
an index, formula or other method (which index, formula or method
may
be based, without limitation, on one or more currencies,
currency
units, composite currencies, commodities, equity indices or
other
indices), and the manner in which such amounts shall be
determined;
(13) whether the principal of (and premium or Make-Whole
Amount, if any) or interest or Additional Amounts, if any, on
the
Securities of or within the series are to be payable, at the
election
of the Company or a Holder thereof, in a currency or
currencies,
currency unit or units or composite currency or currencies other
than
that in which such Securities are denominated or stated to be
payable,
the period or periods within which, and the terms and conditions
upon
which, such election may be made, and the time and manner of,
and
identity of the exchange rate agent with responsibility for,
determining the exchange rate between the currency or
currencies,
currency unit or units or composite currency or currencies in
which
such Securities are denominated or stated to
20
<PAGE>
be payable and the currency or currencies, currency unit or units
or
composite currency or currencies in which such Securities are to be
so
payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of or within the series upon the occurrence
of
such events as
may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
Securities of or within the series, whether or not such Events
of
Default or covenants are consistent with the Events of Default
or
covenants set forth herein;
(16) whether Securities of or within the series are to be
issuable as Registered Securities, Bearer Securities (with or
without
coupons) or both, any restrictions applicable to the offer, sale
or
delivery of Bearer Securities and the terms upon which Bearer
Securities of or within the series may be exchanged for
Registered
Securities of or within the series and vice versa (if permitted
by
applicable laws and regulations), whether any Securities of or
within
the series are to be issuable initially in temporary global form
and
whether any Securities of or within the series are to be issuable
in
permanent global form (with or without coupons) and, if so,
whether
beneficial owners of interests in any such permanent global
Security
may exchange such interests for Securities of such series and of
like
tenor of any authorized form and denomination and the
circumstances
under which any such exchanges may occur, if other than in the
manner
provided in Section 305, and, if Registered Securities of or within
the
series are to be issuable as a global Security, the identity of
the
depositary for such series;
(17) the date as of which any Bearer Securities of or within
the series and any temporary global Security representing
Outstanding
Securities of or within the series shall be dated if other than
the
date of original issuance of the first Security of the series to
be
issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person
in
whose name that Security (or one or more Predecessor Securities)
is
registered at the close of business on the Regular Record Date for
such
interest, the manner in which, or the Person to whom, any interest
on
any Bearer Security of the series shall be payable, if otherwise
than
upon presentation and surrender of the coupons appertaining thereto
as
they severally mature, and the extent to which, or the manner in
which,
any interest payable on a temporary global Security on an
Interest
Payment Date will be paid if other than in the manner provided
in
Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403
to the Securities of or within the series and any provisions in
modification of, in addition to or in lieu of any of the provisions
of
Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of
a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other
conditions,
then the form and/or terms of such certificates, documents or
conditions;
21
<PAGE>
(21) if the Securities of or within the series are to be
issued upon the exercise of debt warrants, the time, manner and
place
for such Securities to be authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1011 on the
Securities of
or within the series to any Holder who is not a United States
person
(including any modification to the definition of such term) in
respect
of any tax, assessment or governmental charge and, if so, whether
the
Company will have the option to redeem such Securities rather than
pay
such Additional Amounts (and the terms of any such option);
(23) the obligation, if any, of the Company to permit the
conversion of the Securities of such series into shares of
Capital
Stock of the Company and the terms and conditions upon which
such
conversion shall be effected (including, without limitation,
the
initial conversion price or rate, the conversion period, any
adjustment
of the applicable conversion price or rate and any requirements
relative to the reservation of such shares for purposes of
conversion);
and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to
any
Bearer Securities of such series, if any,
shall be substantially identical
except, in the case of Registered or Bearer
Securities issued in global form, as
to denomination and except as may otherwise
be provided in or pursuant to such
Board Resolution or in any such indenture
supplemental hereto. All Securities of
any 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, for
issuances of additional Securities of such
series.
If any of the terms of the Securities of any series are established
by
action taken pursuant to one or more Board
Resolutions or supplemental
indentures, a copy of an appropriate record
of such action(s) shall be certified
by the Secretary or an Assistant Secretary
of the Company and delivered to the
Trustee at or prior to the delivery of the
Company Order for authentication and
delivery of such Securities.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations
as shall be specified as contemplated by
Section 301. With respect to Securities
of any series denominated in Dollars, in
the absence of any such provisions with
respect to the Securities of any series,
the Registered Securities of such
series, other than Registered Securities
issued in global form (which may be of
any denomination), shall be issuable in
denominations of $1,000 and any integral
multiple thereof and the Bearer Securities
of such series other than Bearer
Securities issued in global form (which may
be of any denomination), shall be
issuable in denominations of $5,000.
22
<PAGE>
SECTION 303. Execution, Authentication Delivery and Dating.
The Securities and any coupons appertaining thereto shall be
executed
on behalf of the Company by its President
or a Vice President, under its
corporate seal reproduced thereon, and
attested by its Secretary or an Assistant
Secretary. The signature of any of these
officers on the Securities and coupons
may be manual or facsimile signatures of
the present or any future such
authorized officer and may be imprinted or
otherwise reproduced on the
Securities.
Securities or coupons appertaining thereto bearing the manual
or
facsimile signatures of individuals who
were at any time the proper officers of
the Company shall bind the Company,
notwithstanding that such individuals or any
of them have ceased to hold such offices
prior to the authentication and
delivery of such Securities or did not hold
such offices at the date of such
Securities or coupons.
At any time and
from time to time after the execution and delivery of
this Indenture, the Company may deliver
Securities of any series, together with
any coupon appertaining thereto, executed
by the Company to the Trustee for
authentication, together with a Company
Order for the authentication and
delivery of such Securities, and the
Trustee in accordance with the Company
Order shall authenticate and deliver such
Securities; provided, however, that,
in connection with its original issuance,
no Bearer Security shall be mailed or
otherwise delivered to any location in the
United States; and provided further
that, unless otherwise specified with
respect to any series of Securities
pursuant to Section 301 a Bearer Security
may be delivered in connection with
its original issuance only if the Person
entitled to receive such Bearer
Security shall have furnished a certificate
to Euroclear or CEDEL, as the case
may be, in the form set forth in Exhibit
A-1 to this Indenture or such other
certificate as may be specified with
respect to any series of Securities
pursuant to Section 301, dated no earlier
than 15 days prior to the earlier of
the date on which such Bearer Security is
delivered and the date on which any
temporary Security first becomes
exchangeable for such Bearer Security in
accordance with the terms of such temporary
Security and this Indenture. Except
as permitted by Section 306, the Trustee
shall not authenticate and deliver any
Bearer Security unless all appurtenant
coupons for interest then matured have
been detached and cancelled.
If all of the Securities of any series are not to be issued at one
time
and if the Board Resolution or supplemental
indenture establishing such series
shall so permit, such Company Order may set
forth procedures acceptable to the
Trustee for the issuance of such Securities
and determining the terms of
particular Securities of such series, such
as interest rate or formula, maturity
date, date of issuance and date from which
interest shall accrue. In
authenticating such Securities, and
accepting the additional responsibilities
under this Indenture in relation to such
Securities, the Trustee shall be
entitled to receive, and (subject to TIA
Section 315(a) through 315(d)) shall be
fully protected in relying upon:
(1) an Opinion of Counsel complying with Section 102 and
stating that:
(i) the form or forms of such Securities and any
coupons have been, or will have been upon compliance with such
procedures as may be specified therein, established in
conformity with the provisions of this Indenture;
23
<PAGE>
(ii) the terms of such Securities and any coupons
have been, or will have been upon compliance with such
procedures as may be specified therein, established in
conformity with the provisions of this Indenture; and
(iii) such Securities,
together with any coupons
appertaining thereto, when completed pursuant to such
procedures as may be specified therein, and executed and
delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by
the Trustee in accordance with this Indenture and issued by
the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of
creditors' rights generally and to general equitable
principles and to such other matters as may be specified
therein; and
(2) an Officers' Certificate complying with Section 102 and
stating that all conditions precedent provided for in this
Indenture
relating to the issuance of such Securities have been, or will
have
been upon compliance with such procedures as may be specified
therein,
complied with and that, to the best of the knowledge of the signers
of
such certificate, no Event of Default with respect to such
Securities
shall have occurred and be continuing.
The Trustee shall not be required to
authenticate such Securities if the issue
of such Securities pursuant to this
Indenture will affect the Trustee's own
rights, duties, obligations or immunities
under the Securities and this
Indenture or otherwise in a manner which is
not reasonably acceptable to the
Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding
paragraph, if all the Securities of any
series are not to be issued at one time,
it shall not be necessary to deliver a
Company Order, an Opinion of Counsel or
an Officers' Certificate otherwise required
pursuant to the preceding paragraph
at the time of issuance of each Security of
such series, but such order, opinion
and certificate, with appropriate
modifications to cover such future issuances,
shall be delivered at or before the time of
issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its
authentication
and each Bearer Security shall be dated as
of the date specified as contemplated
by Section 301.
No Security or coupon appertaining thereto shall be entitled to
any
benefit under this Indenture or be valid or
obligatory for any purpose unless
there appears on such Security or the
Security to which such coupon appertains a
certificate of authentication substantially
in the form provided for herein duly
executed by the Trustee by manual signature
of an authorized officer, and such
certificate upon any Security shall be
conclusive evidence, and the only
evidence, that such Security has been duly
authenticated and delivered hereunder
and is entitled to the benefits of this
Indenture. Notwithstanding the
foregoing, if any Security shall have been
authenticated and delivered hereunder
but never issued and sold by the Company,
and the Company shall deliver such
Security to the Trustee for cancellation as
provided in Section 309 together
with a written statement (which need not
comply with Section 102 and need not be
accompanied by an
24
<PAGE>
Opinion of Counsel) stating that such
Security has never been issued or sold by
the Company, for all purposes of this
Indenture such Security shall be deemed
never to have been authenticated and
delivered hereunder and shall never be
entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
(1) Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the
Trustee
shall authenticate and deliver, temporary Securities which are
printed,
lithographed, typewritten, mimeographed or otherwise produced, in
any
authorized denomination; substantially of the tenor of the
definitive
Securities in lieu of which they are issued, in registered form,
or, if
authorized, in bearer form with one or more coupons or without
coupons,
and with such appropriate insertions, omissions, substitutions
and
other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such
temporary
Securities may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(B) or
as
otherwise provided in or pursuant to a Board Resolution), if
temporary
Securities of any series are issued, the Company will cause
definitive
Securities of that series to be prepared without unreasonable
delay.
After the preparation of definitive Securities of such series,
the
temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the
temporary
Securities of such series at the office or agency of the Company in
a
Place of Payment for that series, without charge to the Holder.
Upon
surrender for cancellation of any one or more temporary Securities
of
any series (accompanied by any non-matured coupons appertaining
thereto), the Company shall execute and the Trustee shall
authenticate
and deliver in exchange therefor a like principal amount of
definitive
Securities of the same series of authorized denominations;
provided,
however, that no definitive Bearer Security shall be delivered
in
exchange for a temporary Registered Security; and provided further
that
a definitive Bearer Security shall be delivered in exchange for
a
temporary Bearer Security only in compliance with the conditions
set
forth in Section 303. Until so exchanged, the temporary Securities
of
any series shall in all respects be entitled to the same benefits
under
this Indenture as definitive Securities of such series.
(2) Unless otherwise provided as contemplated in Section 301,
this Section 304(B) shall govern the exchange of temporary
Securities
issued in global form other than through the facilities of DTC. If
any
such temporary Security is issued in global form, then such
temporary
global Security shall, unless otherwise provided therein, be
delivered
to the London office of a depositary or common depositary (the
"Common
Depositary"), for the benefit of Euroclear and CEDEL.
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any
such
temporary global Security (the "Exchange Date"), the Company
shall
deliver to the Trustee definitive Securities, in an aggregate
principal
amount equal to the principal amount of such temporary global
Security,
25
<PAGE>
executed by the Company. On or after the Exchange Date, such
temporary
global Security shall be surrendered by the Common Depositary to
the
Trustee, as the Company's agent for such purpose, to be exchanged,
in
whole or from time to time in part, for definitive Securities
without
charge, and the Trustee shall authenticate and deliver, in exchange
for
each portion of such temporary global Security, an equal
aggregate
principal amount of definitive Securities of or within the same
series
of authorized denominations and of like tenor as the portion of
such
temporary global Security to be exchanged. The definitive
Securities to
be delivered in exchange for any such temporary global Security
shall
be in bearer form, registered form, permanent global bearer form
or
permanent global registered form, or any combination thereof,
as
specified as contemplated by Section 301, and, if any
combination
thereof is so specified, as requested by the beneficial owner
thereof,
provided, however, that, unless otherwise specified in such
temporary
global Security, upon such presentation by the Common Depositary,
such
temporary global Security is accompanied by a certificate dated
the
Exchange Date or a subsequent date and signed by Euroclear as to
the
portion of such temporary global Security held for its account then
to
be exchanged and a certificate dated the Exchange Date or a
subsequent
date and signed by CEDEL as to the portion of such temporary
global
Security held for its account then to be exchanged, each in the
form
set forth in Exhibit A-2 to this Indenture or in such other form as
may
be established pursuant to Section 301; and provided further
that
definitive Bearer
Securities shall be delivered in exchange for a
portion of a temporary global Security only in compliance with
the
requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in
a
temporary global Security shall be exchanged for definitive
Securities
of the same series and of like tenor following the Exchange Date
when
the account holder instructs Euroclear or CEDEL, as the case may
be, to
request such exchange on his behalf and delivers to Euroclear or
CEDEL,
as the case may be, a certificate in the form set forth in Exhibit
A-1
to this Indenture (or in such other form as may be established
pursuant
to Section 301), dated no earlier than 15 days prior to the
Exchange
Date, copies of which certificate shall be available from the
offices
of Euroclear and CEDEL, the Trustee, any Authenticating Agent
appointed
for such series of Securities and each Paying Agent. Unless
otherwise
specified in such temporary global Security, any such exchange
shall be
made free of charge to the beneficial owners of such temporary
global
Security, except that a Person receiving definitive Securities
must
bear the cost of insurance, postage, transportation and the like
unless
such Person takes delivery of such definitive Securities in person
at
the
offices of Euroclear or CEDEL. Definitive Securities in bearer
form
to be delivered in exchange for any portion of a temporary
global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the
same
benefits under this Indenture as definitive Securities of the
same
series and of like tenor authenticated and delivered hereunder,
except
that, unless otherwise specified as contemplated by Section
301,
interest payable on a temporary global Security on an Interest
Payment
Date for Securities of such series occurring prior to the
applicable
Exchange Date shall be payable to Euroclear and CEDEL on such
Interest
Payment Date upon delivery by Euroclear and
26
<PAGE>
CEDEL to the Trustee of a certificate or certificates in the form
set
forth in Exhibit A-2 to this Indenture (or in such other forms as
may
be established pursuant to Section 301), for credit without
further
interest on or after such Interest Payment Date to the
respective
accounts of Persons who are the beneficial owners of such
temporary
global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a
certificate
dated no earlier than 15 days prior to the Interest Payment
Date
occurring prior to such Exchange Date in the form set forth as
Exhibit
A-1 to this Indenture (or in such other forms as may be
established
pursuant to Section 301). Notwithstanding anything to the
contrary
herein contained, the certifications made pursuant to this
paragraph
shall satisfy the certification requirements of the preceding
two
paragraphs of this Section 304(B) and of the third paragraph of
Section
303 of this Indenture and the interests of the Persons who are
the
beneficial owners of the temporary global Security with respect
to
which such certification was made will be exchanged for
definitive
Securities of the same series and of like tenor on the Exchange
Date or
the date of certification if such date occurs after the Exchange
Date,
without further act or deed by such beneficial owners. Except
as
otherwise provided in this paragraph, no payments of principal
or
interest owing with respect to a beneficial interest in a
temporary
global Security will be made unless and until such interest in
such
temporary global Security shall have been exchanged for an interest
in
a definitive Security.
Any interest so received by Euroclear and CEDEL
and not paid as herein provided shall be returned to the Trustee
prior
to the expiration of two years after such Interest Payment Date
in
order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the
Trustee or in any office or agency of the
Company in a Place of Payment a
register for each series of Securities (the
registers maintained in such office
or in any such office or agency of the
Company in a Place of Payment being
herein sometimes referred to collectively
as the "Security Register") in which,
subject to such reasonable regulations as
it may prescribe, the Company shall
provide for the registration of Registered
Securities and of transfers of
Registered Securities. The Security
Register shall be in written form or any
other form capable of being converted into
written form within a reasonable
time. The Trustee is hereby initially
appointed "Security Registrar" for the
purpose of registering Registered
Securities and transfers of Registered
Securities on such Security Register as
herein provided. In the event that the
Trustee shall cease to be Security
Registrar, it shall have the right to examine
the Security Register at all reasonable
times.
Subject to the provisions of this Section 305, upon surrender
for
registration of transfer of any Registered
Security of any series at any office
or agency of the Company in a Place of
Payment for that series, the Company
shall execute, and the Trustee shall
authenticate and deliver, in the name of
the designated transferee or transferees,
one or more new Registered Securities
of the same series, of any authorized
denominations and of a like aggregate
principal amount, being a number not
contemporaneously outstanding, and
containing identical terms and
provisions.
Subject to the provisions of this Section 305, at the option of
the
Holder, Registered Securities of any series
may be exchanged for other
Registered Securities of the same series,
of
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<PAGE>
any authorized denomination or
denominations and of a like aggregate principal
amount, containing identical terms and
provisions, upon surrender of the
Registered Securities to be exchanged at
any such office or agency. Whenever any
such Registered Securities are so
surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate
and deliver, the Registered
Securities which the Holder making the
exchange is entitled to receive. Unless
otherwise specified with respect to any
series of Securities as contemplated by
Section 301, Bearer Securities may not be
issued in exchange for Registered
Securities.
If (but only if) permitted as contemplated by Section 301, at
the
option of the Holder, Bearer Securities of
any series may be exchanged for
Registered Securities of the same series of
any authorized denominations and of
a like aggregate principal amount and
tenor, upon surrender of the Bearer
Securities to be exchanged at any such
office or agency, with all unmatured
coupons and all matured coupons in default
thereto appertaining. If the Holder
of a Bearer Security is unable to produce
any such unmatured coupon or coupons
or matured coupon or coupons in default,
any such permitted exchange may be
effected if the Bearer Securities are
accompanied by payment in funds acceptable
to the Company in an amount equal to the
face amount of such missing coupon or
coupons, or the surrender of such missing
coupon or coupons may be waived by the
Company and the Trustee if there is
furnished to them such security or indemnity
as they may require to save each of them
and any Paying Agent harmless. If
thereafter the Holder of such Security
shall surrender to any Paying Agent any
such missing coupon in respect of which
such a payment shall have been made,
such Holder shall be entitled to receive
the amount of payment; provided,
however, that, except as otherwise provided
in Section 1002, interest
represented by coupons shall be payable
only upon presentation and surrender of
those coupons at an office or agency
located outside the United States.
Notwithstanding the foregoing, in case a
Bearer Security of any series is
surrendered at any such office or agency in
a permitted exchange for a
Registered Security of the same series and
like tenor after the close of
business at such office or agency on (i)
any Regular Record Date and before the
Opening of business at such office or
agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and
before the opening of business at such
office or agency on the related proposed
date for payment of Defaulted Interest,
such Bearer Security shall be surrendered
without the coupon relating to such
Interest Payment Date or proposed date for
payment, as the case may be, and
interest or Defaulted Interest, as the case
may be, will not be payable on such
Interest Payment Date or proposed date for
payment, as the case may be, in
respect of the Registered Security issued
in exchange for such Bearer Security,
but will be payable only to the Holder of
such coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so
surrendered for exchange, the Company shall
execute, and the Trustee shall
authenticate and deliver, the Securities
which the holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent
global Security shall be exchangeable
only as provided in this paragraph. If the
depositary for any permanent global
Security is DTC, then, unless the terms of
such global Security expressly permit
such global Security to be exchanged in
whole or in part for definitive
Securities, a global Security may be
transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC
to DTC, or to a successor to DTC for
such global Security selected and approved
by the Company or to a nominee of
such successor to DTC. If at any time DTC
notifies the Company that it is
unwilling or unable to continue as
depositary for the applicable global Security
or Securities or if at any time DTC ceases
to be a clearing agency
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<PAGE>
registered under the Exchange Act if so
required by applicable law or
regulation, the Company shall appoint a
successor depositary with respect to
such global Security or Securities. If (x)
a successor depositary for such
global Security or Securities is not
appointed by the Company within 90 days
after the Company receives such notice or
becomes aware of such unwillingness,
inability or ineligibility, (y) an Event of
Default has occurred and is
continuing and the beneficial owners
representing a majority in principal amount
of the applicable series of Securities
represented by such global Security or
Securities advise DTC to cease acting as
depositary for such global Security or
Securities or (z) the Company, in its sole
discretion, determines at any time
that all Outstanding Securities (but not
less than all) Securities of any series
issued or issuable in the form of one or
more global Securities shall no longer
be represented by such global Security or
Securities (provided, however, the
Company may not make such determination
during the 40-day restricted period
provided by Regulation S under the
Securities Act or during any other similar
period during which the Securities must be
held in global form as may be
required by the Securities Act), then the
Company shall execute, and the Trustee
shall authenticate and deliver definitive
Securities of like series, rank, tenor
and terms in definitive form in an
aggregate principal amount equal to the
principal amount of such global Security or
Securities. If any beneficial owner
of an interest in a permanent global
Security is otherwise entitled to exchange
such interest for Securities of such series
and of like tenor and principal
amount of another authorized form and
denomination, as specified as contemplated
by Section 301 and provided that any
applicable notice provided in the permanent
global Security shall have been given, then
without unnecessary delay but in any
event not later than the earliest date on
which such interest may be so
exchanged, the Company shall execute, and
the Trustee shall authenticate and
deliver definitive Securities in aggregate
principal amount equal to the
principal amount of such beneficial owner's
interest in such permanent global
Security. On or after the earliest date on
which such interests may be so
exchanged, such permanent global Security
shall be surrendered for exchange by
DTC or such other depositary as shall be
specified in the Company Order with
respect thereto to the Trustee, as the
Company's agent for such purpose;
provided, however, that no such exchanges
may occur during a period beginning at
the opening of business 15 days before any
selection of Securities to be
redeemed and ending on the relevant
Redemption Date if the Security for which
exchange is requested may be among those
selected for redemption; and provided
further that no Bearer Security delivered
in exchange for a portion of a
permanent global Security shall be mailed
or otherwise delivered to any location
in the United States. If a Registered
Security is issued in exchange for any
portion of a permanent global Security
after the close of business at the office
or agency where such exchange occurs on (i)
any Regular Record Date and before
the opening of business at such office or
agency on the relevant Interest
Payment Date, or (ii) any Special Record
Date and the opening of business at
such office or agency on the related
proposed date for payment of Defaulted
Interest, interest or Defaulted Interest,
as the case may be, will not be
payable on such Interest Payment Date or
proposed date for payment, as the case
may be, in respect of such Registered
Security, but will be payable on such
Interest Payment Date or proposed date for
payment, as the case may be, only to
the Person to whom interest in respect of
such portion of such permanent global
Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange
of
Securities shall be the valid obligations
of the Company, evidencing the same
debt, and entitled to the same benefits
under this Indenture, as the Securities
surrendered upon such registration of
transfer or exchange.
29
<PAGE>
Every Registered Security presented or surrendered for registration
of
transfer or for exchange or redemption
shall be duly endorsed, or be accompanied
by a written instrument of transfer in form
satisfactory to the Security
Registrar, duly executed by the Holder
thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer
or
exchange of Securities, but the Company may
require payment of a sum sufficient
to cover any tax or other governmental
charge that may be imposed in connection
with any registration of transfer or
exchange of Securities, other than
exchanges pursuant to Section 304, 906,
1107 or 1305 not involving any transfer.
The Company or the Trustee, as applicable, shall not be required
(i) to
issue, register the transfer of or exchange
any Security if such Security may be
among those selected for redemption during
a period beginning at the opening of
business 15 days before selection of the
Securities to be redeemed under Section
1103 and ending at the close of business on
(A) if such Securities are issuable
only as Registered Securities, the day of
the mailing of the relevant notice of
redemption and (B) if such Securities are
issuable as Bearer Securities, the day
of the first publication of the relevant
notice of redemption or, if such
Securities are also issuable as Registered
Securities and there is no
publication, the mailing of the relevant
notice of redemption, or (ii) to
register the transfer of or exchange any
Registered Security so selected for
redemption in whole or in part, except, in
the case of any Registered Security
to be redeemed in part, the portion thereof
not to be redeemed, or (iii) to
exchange any Bearer Security so selected
for redemption except that such a
Bearer Security may be exchanged for a
Registered Security of that series and
like tenor; provided that such Registered
Security shall be simultaneously
surrendered for redemption, or (iv) to
issue, register the transfer of or
exchange any Security which has been
surrendered for repayment at the option of
the Holder, except the portion, if any, of
such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the
Trustee or the Company, together with,
in proper cases, such security or indemnity
as may be required by the Company or
the Trustee to save each of them or any
agent of either of them harmless, the
Company shall execute and the Trustee shall
authenticate and deliver in exchange
therefor a new Security of the same series
and principal amount, containing
identical terms and provisions and bearing
a number not contemporaneously
outstanding, with coupons corresponding to
the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Company and to the Trustee
(i)
evidence to their satisfaction of the
destruction, loss or theft of any Security
or coupon, and (ii) such security or
indemnity as may be required by them to
save each of them and any agent of either
of them harmless, then, in the absence
of actual notice to the Company or the
Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the
Company shall execute and upon its
request the Trustee shall authenticate and
deliver, in lieu of any such
destroyed, lost or stolen Security or in
exchange for the Security to which a
destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not
destroyed, lost or stolen), a new Security
of the same series and principal
amount, containing identical terms and
provisions and bearing a number not
30
<PAGE>
contemporaneously outstanding, with coupons
corresponding to the coupons, if
any, appertaining to such destroyed, lost
or stolen Security or to the Security
to which such destroyed, lost or stolen
coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in
case
any such mutilated, destroyed, lost or
stolen Security or coupon has become or
is about to become due and payable, the
Company in its discretion may, instead
of issuing a new Security, with coupons
corresponding to the coupons, if any,
appertaining to such destroyed, lost or
stolen Security or to the Security to
which such destroyed, lost or stolen coupon
appertains, pay such Security or
coupon; provided, however, that payment of
principal of (and premium or
Make-Whole Amount, if any), any interest on
and any Additional Amounts with
respect to, Bearer Securities shall, except
as otherwise provided in Section
1002, be payable only at an office or
agency located outside the United States
and, unless otherwise specified as
contemplated by Section 301, any interest on
Bearer Securities shall be payable only
upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company
may require the payment of a sum sufficient
to cover any tax or other
governmental charge that may be imposed in
relation thereto and any other
expenses (including the fees and expenses
of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued
pursuant to this Section in lieu of any
destroyed, lost or stolen Security, or
in exchange for a Security to which a
destroyed, lost or stolen coupon
appertains, shall constitute an original
additional contractual obligation of
the Company, whether or not the destroyed,
lost or stolen Security and its
coupons, if any, or the destroyed, lost or
stolen coupon shall be at any time
enforceable by anyone, and shall be
entitled to all the benefits of this
Indenture equally and proportionately with
any and all other Securities of that
series and their coupons, if any, 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
paym
