EXHIBIT 4.24
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TECHNICAL OLYMPIC USA, INC.,
as Issuer
7 1/2% SENIOR SUBORDINATED NOTES DUE 2011
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INDENTURE
Dated as of March 17, 2004
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XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture Act Indenture
------------------- ---------
310 (a)(1)...................................................................... 7.10
(a)(2)...................................................................... 7.10
(a)(3)...................................................................... N.A.
(a)(4)...................................................................... N.A.
(a)(5)...................................................................... 7.10
(b)......................................................................... 7.10
(c)......................................................................... N.A.
311 (a)......................................................................... 7.11
(b)......................................................................... 7.11
(c)......................................................................... N.A.
312 (a)......................................................................... 2.05
(b)......................................................................... 14.03
(c)......................................................................... 14.03
313 (a)......................................................................... 7.06(a)
(b)(2)...................................................................... 7.06(a)
(c)......................................................................... 7.06; 14.02
(d)......................................................................... 7.06(b)
314 (a)......................................................................... 4.03; 14.02; 14.04
(c)(1)...................................................................... 14.04(a)
(c)(2)...................................................................... 14.04(b)
(c)(3)...................................................................... N.A.
(e)......................................................................... 14.05
(f)......................................................................... NA
315 (a)......................................................................... 7.01(b)
(b)......................................................................... 7.05; 14.02
(c)......................................................................... 7.01(a)
(d)......................................................................... 7.01(c)
(e)......................................................................... 6.11
316 (a)(last sentence).......................................................... 2.09
(a)(1)(A)................................................................... 6.05
(a)(1)(B)................................................................... 6.04
(a)(2)...................................................................... N.A.
(b)......................................................................... 6.07
(c)......................................................................... 9.02(c)
317 (a)(1)...................................................................... 6.08
(a)(2)...................................................................... 6.09
(b)......................................................................... 2.04
318 (a)......................................................................... 14.01
(b)......................................................................... N.A.
(c)......................................................................... 14.01
N.A. means not applicable.
*This Cross-Reference Table is not part of this Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.................................................................................... 1
Section 1.02. Other Definitions.............................................................................. 28
Section 1.03. Incorporation by Reference of Trust Indenture Act.............................................. 28
Section 1.04. Rules of Construction.......................................................................... 29
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating................................................................................ 29
Section 2.02. Execution and Authentication................................................................... 30
Section 2.03. Registrar and Paying Agent..................................................................... 31
Section 2.04. Paying Agent to Hold Money in Trust............................................................ 31
Section 2.05. Holder Lists................................................................................... 31
Section 2.06. Transfer And Exchange.......................................................................... 31
Section 2.07. Replacement Notes.............................................................................. 43
Section 2.08. Outstanding Notes.............................................................................. 43
Section 2.09. Treasury Notes................................................................................. 44
Section 2.10. Temporary Notes................................................................................ 44
Section 2.11. Cancellation................................................................................... 44
Section 2.12. Defaulted Interest............................................................................. 44
Section 2.13. CUSIP Or ISIN Numbers.......................................................................... 44
Section 2.14. Special Interest............................................................................... 45
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee............................................................................. 45
Section 3.02. Selection of Notes to be Redeemed.............................................................. 45
Section 3.03. Notice of Redemption........................................................................... 46
Section 3.04. Effect of Notice of Redemption................................................................. 47
Section 3.05. Deposit of Redemption Price.................................................................... 47
Section 3.06. Notes Redeemed in Part......................................................................... 47
Section 3.07. Optional Redemption............................................................................ 47
Section 3.08. Mandatory Redemption........................................................................... 48
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes............................................................................... 48
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Section 4.02. Maintenance of Office or Agency................................................................ 49
Section 4.03. Reports........................................................................................ 49
Section 4.04. Compliance Certificate......................................................................... 50
Section 4.05. Taxes.......................................................................................... 50
Section 4.06. Stay, Extension and Usury Laws................................................................. 50
Section 4.07. Corporate Existence............................................................................ 51
Section 4.08. Payments for Consent........................................................................... 51
Section 4.09. Maintenance of Consolidated Net Worth.......................................................... 51
Section 4.10. Incurrence of Debt............................................................................. 52
Section 4.11. Restricted Payments............................................................................ 55
Section 4.12. Liens.......................................................................................... 57
Section 4.13. Asset Sales.................................................................................... 57
Section 4.14. Restrictions on Distributions from Restricted Subsidiaries..................................... 59
Section 4.15. Transactions with Affiliates................................................................... 60
Section 4.16. Designation of Restricted and Unrestricted Subsidiaries........................................ 61
Section 4.17. Repurchase at the Option of Holders Upon a Change of Control................................... 63
Section 4.18. Future Subsidiary Guarantors................................................................... 63
Section 4.19. Layered Debt................................................................................... 64
Section 4.20. Business Activities............................................................................ 64
Section 4.21. Covenant Suspension............................................................................ 64
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Property..................................................... 65
Section 5.02. Successor Corporation Substituted.............................................................. 67
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.............................................................................. 67
Section 6.02. Acceleration................................................................................... 68
Section 6.03. Other Remedies................................................................................. 69
Section 6.04. Waiver of Past Defaults........................................................................ 69
Section 6.05. Control by Majority............................................................................ 69
Section 6.06. Limitation on Suits............................................................................ 69
Section 6.07. Rights of Holders to Receive Payment........................................................... 70
Section 6.08. Collection Suit by Trustee..................................................................... 70
Section 6.09. Trustee May File Proofs of Claim............................................................... 70
Section 6.10. Priorities..................................................................................... 71
Section 6.11. Undertaking for Costs.......................................................................... 71
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee.............................................................................. 71
Section 7.02. Rights of Trustee.............................................................................. 72
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PAGE
Section 7.03. Individual Rights of Trustee................................................................... 73
Section 7.04. Trustee's Disclaimer........................................................................... 73
Section 7.05. Notice of Defaults............................................................................. 73
Section 7.06. Reports by Trustee to Holders.................................................................. 74
Section 7.07. Compensation and Indemnity..................................................................... 74
Section 7.08. Replacement of Trustee......................................................................... 75
Section 7.09. Successor Trustee by Merger, Etc............................................................... 75
Section 7.10. Eligibility; Disqualification.................................................................. 76
Section 7.11. Preferential Collection of Claims Against Company.............................................. 76
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance....................................... 76
Section 8.02. Legal Defeasance............................................................................... 76
Section 8.03. Covenant Defeasance............................................................................ 77
Section 8.04. Conditions to Legal or Covenant Defeasance..................................................... 77
Section 8.05. Deposited Money And Government Securities To Be Held In Trust; Other Miscellaneous
Provisions.................................................................................. 78
Section 8.06. Repayment to Company........................................................................... 79
Section 8.07. Reinstatement.................................................................................. 79
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes............................................................ 79
Section 9.02. With Consent of Holders of Notes............................................................... 80
Section 9.03. With Consent of Holders of Senior Debt......................................................... 82
Section 9.04. Compliance with Trust Indenture Act............................................................ 82
Section 9.05. Revocation and Effect of Consents.............................................................. 82
Section 9.06. Notation on or Exchange of Notes............................................................... 82
Section 9.07. Trustee to Sign Amendments, Etc................................................................ 82
ARTICLE 10.
SUBSIDIARY GUARANTIES
Section 10.01. Subsidiary Guaranty............................................................................ 83
Section 10.02. Limitation on Subsidiary Guarantor Liability................................................... 84
Section 10.03. Execution and Delivery Of Subsidiary Guaranty.................................................. 85
Section 10.04. Additional Subsidiary Guarantors............................................................... 85
Section 10.05. Release of Subsidiary Guarantor................................................................ 85
ARTICLE 11.
SUBORDINATION
Section 11.01. Agreement to Subordinate....................................................................... 86
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PAGE
Section 11.02. Liquidation, Dissolution, Bankruptcy........................................................... 86
Section 11.03. Default on Senior Debt......................................................................... 86
Section 11.04. Acceleration of Payment of Securities.......................................................... 87
Section 11.05. When Distribution Must be Paid Over............................................................ 87
Section 11.06. Subrogation.................................................................................... 87
Section 11.07. Relative Rights................................................................................ 87
Section 11.08. Subordination May Not be Impaired by Company................................................... 87
Section 11.09. Rights of Trustee and Paying Agent............................................................. 88
Section 11.10. Distribution or Notice to Representative....................................................... 88
Section 11.11. Article 11 Not to Prevent Events of Default or Limit Right to Accelerate....................... 88
Section 11.12. Trust Moneys Not Subordinated.................................................................. 88
Section 11.13. Trustee Entitled to Rely....................................................................... 88
Section 11.14. Trustee to Effectuate Subordination............................................................ 89
Section 11.15. Trustee Not Fiduciary for Holders of Senior Debt............................................... 89
Section 11.16. Reliance by Holders of Senior Debt on Subordination Provisions................................. 89
ARTICLE 12.
SUBORDINATION OF SUBSIDIARY GUARANTEES
Section 12.01. Agreement to Subordinate....................................................................... 89
Section 12.02. Liquidation, Dissolution, Bankruptcy........................................................... 89
Section 12.03. Default on Senior Debt of Subsidiary Guarantor................................................. 90
Section 12.04. Demand for Payment............................................................................. 90
Section 12.05. When Distribution Must be Paid Over............................................................ 90
Section 12.06. Subrogation.................................................................................... 90
Section 12.07. Relative Rights................................................................................ 91
Section 12.08. Subordination May Not be Impaired by Subsidiary Guarantor...................................... 91
Section 12.09. Rights of Trustee and Paying Agent............................................................. 91
Section 12.10. Distribution or Notice to Representative....................................................... 91
Section 12.11. Article 12 Not to Prevent Events of Default Under a Subsidiary Guaranty or Limit Right
to Demand Payment........................................................................... 91
Section 12.12. Trustee Entitled To Rely....................................................................... 92
Section 12.13. Trustee to Effectuate Subordination............................................................ 92
Section 12.14. Trustee Not Fiduciary For Holders of Senior Debt of Subsidiary Guarantor....................... 92
Section 12.15. Reliance by Holders of Senior Debt of a Subsidiary Guarantor on Subordination
Provisions.................................................................................. 92
ARTICLE 13.
SATISFACTION AND DISCHARGE
Section 13.01. Satisfaction and Discharge..................................................................... 93
Section 13.02. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions.................................................................................. 93
Section 13.03. Repayment to Company........................................................................... 94
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PAGE
ARTICLE 14.
MISCELLANEOUS
Section 14.01. Trust Indenture Act Controls................................................................... 94
Section 14.02. Notices........................................................................................ 94
Section 14.03. Communication by Holders of Notes with Other Holders of Notes.................................. 95
Section 14.04. Certificate and Opinion as to Conditions Precedent............................................. 95
Section 14.05. Statements Required in Certificate or Opinion.................................................. 96
Section 14.06. Rules by Trustee and Agents.................................................................... 96
Section 14.07. No Personal Liability of Directors, Officers, Employees and Stockholders....................... 96
Section 14.08. GOVERNING LAW.................................................................................. 96
Section 14.09. No Adverse Interpretation of Other Agreements.................................................. 96
Section 14.10. Successors..................................................................................... 97
Section 14.11. Severability................................................................................... 97
Section 14.12. Counterpart Originals.......................................................................... 97
Section 14.13. Table of Contents, Headings, Etc............................................................... 97
EXHIBITS
Exhibit A FORM OF NOTE A-1
Exhibit B FORM OF CERTIFICATE OF TRANSFER B-1
Exhibit C FORM OF CERTIFICATE OF EXCHANGE C-1
Exhibit D FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR D-1
Exhibit E FORM OF NOTATION OF GUARANTEE E-1
Exhibit F FORM OF SUPPLEMENTAL INDENTURE F-1
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This INDENTURE dated as of March 17, 2004, is by and among
Technical Olympic USA, Inc., a Delaware corporation (the "Company"), the
Subsidiary Guarantors (as defined) party hereto, and Xxxxx Fargo Bank, National
Association, a national banking association, as trustee (the "Trustee"). The
Company, the Subsidiary Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the 7 1/2% Senior Subordinated Notes due 2011 (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
"144A Global Note" means the global Note in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with and registered in the name of the Depositary or its nominee
that will be issued in a denomination equal to the outstanding principal amount
of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means Debt of a Person outstanding on the date
on which such Person becomes a Restricted Subsidiary or assumed in connection
with the acquisition of assets from such Person.
"Additional Assets" means:
(1) any Property (other than cash, Cash Equivalents and
securities) to be owned by the Company or any Restricted Subsidiary and
used in a Permitted Business; or
(2) Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the
Company or another Restricted Subsidiary from any Person other than the
Company or an Affiliate of the Company; provided, however, that, in the
case of this clause (2), such Restricted Subsidiary is primarily
engaged in a Permitted Business.
"Additional Notes" means any Notes (other than Initial Notes
and Exchange Notes) issued under this Indenture in accordance with Sections 2.02
and 4.10, as part of the same series as the Initial Notes or as an additional
series.
"Additional Senior Notes" means any Senior Notes (other than
Initial Senior Notes and Senior Exchange Notes) issued under the Senior Notes
Indenture in accordance with Sections 2.02 and 4.10 thereof, as part of the same
series as the Initial Senior Notes or as an additional series.
"Additional Senior Subordinated Notes" means any Senior
Subordinated Notes (other than Initial Senior Subordinated Notes and Senior
Subordinated Exchange Notes) issued under the Senior Subordinated Notes
Indenture in accordance with Sections 2.02 and 4.10 thereof, as part of the same
series as the Initial Senior Subordinated Notes or as an additional series.
"Affiliate" of any specified Person means:
(1) any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such
specified Person, or
(2) any other Person who is a director or executive officer
of:
(a) such specified Person,
(b) any Subsidiary of such specified Person, or
(c) any Person described in clause (1) above.
For the purposes of this definition, "control," when used with respect to any
Person, means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the preceding. For purposes of Sections 4.13 and 4.15
and the definition of "Additional Assets" only, "Affiliate" shall also mean any
beneficial owner of shares representing 10% or more of the total voting power of
the Voting Stock (on a fully diluted basis) of the Company.
"Agent" means any Registrar, co-registrar, Paying Agent or
additional paying agent.
"Applicable Procedures" means, with respect to any transfer,
redemption or exchange of or for beneficial interests in any Global Note, the
rules and procedures of the Depositary, Euroclear and Clearstream that apply to
such transfer, redemption or exchange.
"Asset Sale" means any sale, lease, transfer, issuance or
other disposition (or series of related sales, leases, transfers, issuances or
dispositions) by the Company or any Restricted Subsidiary, including any
disposition by means of a merger, consolidation or similar transaction (each
referred to for the purposes of this definition as a "disposition"), of
(1) any shares of Capital Stock of a Restricted Subsidiary
(other than directors' qualifying shares), or
(2) any other Property of the Company or any Restricted
Subsidiary outside of the ordinary course of business of the Company or
such Restricted Subsidiary, other than, in the case of clause (1) or
(2) above,
(a) any disposition by a Restricted Subsidiary to the
Company or by the Company or a Restricted Subsidiary to a
Wholly Owned Restricted Subsidiary,
(b) any disposition that constitutes a Permitted
Investment, a Restricted Payment or Debt under a Warehouse
Facility permitted by Section 4.10 or 4.11,
(c) any disposition effected in compliance with
Section 5.01(a),
(d) any disposition of cash or Cash Equivalents, and
(e) any disposition or series of related dispositions
of Property with an aggregate Fair Market Value, and for net
proceeds, of less than $1.0 million.
"Attributable Debt" in respect of a Sale and Leaseback
Transaction means, at any date of determination,
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(1) if such Sale and Leaseback Transaction is a Capital Lease
Obligation, the amount of Debt represented thereby according to the
definition of "Capital Lease Obligations," and
(2) in all other instances, the greater of:
(a) the Fair Market Value of the Property subject to
such Sale and Leaseback Transaction, and
(b) the present value (discounted at the interest
rate borne by the Senior Notes, compounded annually) of the
total obligations of the lessee for rental payments during the
remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such
lease has been extended).
"Average Life" means, as of any date of determination, with
respect to any Debt or Preferred Stock, the quotient obtained by dividing:
(1) the sum of the product of the numbers of years (rounded to
the nearest one-twelfth of one year) from the date of determination to
the dates of each successive scheduled principal payment of such Debt
or redemption or similar payment with respect to such Preferred Stock
multiplied by the amount of such payment by
(2) the sum of all such payments.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
"Board of Directors" means the board of directors of the
Company or any committee thereof authorized with respect to any particular
matter to exercise the power of the Board of Directors of the Company.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the applicable Person to have been
duly adopted by the board of directors of such Person and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligations" means any obligation under a lease
that is required to be capitalized for financial reporting purposes in
accordance with GAAP; and the amount of Debt represented by such obligation
shall be the capitalized amount of such obligations determined in accordance
with GAAP; and the Stated Maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.
For purposes of Section 4.12, a Capital Lease Obligation shall be deemed secured
by a Lien on the Property being leased.
"Capital Stock" means, with respect to any Person, any shares
or other equivalents (however designated) of any class of corporate stock or
partnership interests or any other participations, rights, warrants, options or
other interests in the nature of an equity interest in such Person, including
Preferred Stock, but excluding any debt security convertible or exchangeable
into such equity interest.
"Capital Stock Sale Proceeds" means the aggregate cash
proceeds received by the Company, including the Fair Market Value of Property
other than cash, received from the issuance or sale
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(other than to a Subsidiary of the Company or an employee stock ownership plan
or trust established by the Company or any such Subsidiary for the benefit of
their employees) by the Company of its Capital Stock (other than Disqualified
Stock) after June 25, 2002 (and in no event received in connection with the
Merger), net of attorneys' fees, accountants' fees, underwriters' or placement
agents' fees, discounts or commissions and brokerage, consultant and other fees
actually incurred in connection with such issuance or sale and net of taxes paid
or payable as a result thereof.
"Cash Equivalents" means
(1) securities issued or directly and fully guaranteed or
insured by the United States Government or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof), having maturities of not
more than one year from the date of acquisition;
(2) marketable general obligations issued by any state of the
United States of America or any political subdivision of any such state
or any public instrumentality thereof maturing within one year from the
date of acquisition thereof (provided that the full faith and credit of
such state is pledged in support thereof) and, at the time of
acquisition thereof, having credit ratings of at least AA- (or the
equivalent) by S&P and at least Aa3 (or the equivalent) by Xxxxx'x;
(3) certificates of deposit, time deposits, eurodollar time
deposits, overnight bank deposits or bankers' acceptances having
maturities of not more than one year from the date of acquisition
thereof issued by any commercial bank organized in the United States of
America or Canada, the long-term debt of which is rated at the time of
acquisition thereof at least AA- (or the equivalent) by S&P and at
least Aa3 (or the equivalent) by Xxxxx'x, and having combined capital
and surplus in excess of $500.0 million;
(4) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (1),
(2) and (3) entered into with any bank meeting the qualifications
specified in clause (3) above;
(5) commercial paper rated at the time of acquisition thereof
in one of the two highest categories obtainable from both S&P and
Xxxxx'x or carrying an equivalent rating by a nationally recognized
rating agency, if both of the two named rating agencies cease
publishing ratings of investments, and in any case maturing within one
year after the date of acquisition thereof; and
(6) interests in any investment company or money market fund
substantially all of the assets of which are of the type specified in
clauses (1) through (5) above.
"Change of Control" means the occurrence of any of the
following events:
(1) if any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act or any successor
provisions to either of the preceding), including any group acting for
the purpose of acquiring, holding, voting or disposing of securities
within the meaning of Rule 13d-5(b)(1) under the Exchange Act, other
than any one or more of the Permitted Holders, becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act, except that a
person will be deemed to have "beneficial ownership" of all shares that
any such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of 50% or more of the total voting power of the Voting
Stock of the Company; (for purposes of this clause (1), such person or
group shall be deemed to beneficially own any Voting Stock of a
corporation held by any other corporation (the "parent corporation")
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so long as such person or group beneficially owns, directly or
indirectly, in the aggregate a majority of the total voting power of
the Voting Stock of such parent corporation); or
(2) the sale, transfer, assignment, lease, conveyance or other
disposition, directly or indirectly, of all or substantially all the
Property of the Company and the Restricted Subsidiaries, considered as
a whole (other than a disposition of such Property as an entirety or
virtually as an entirety to a Wholly Owned Restricted Subsidiary),
shall have occurred, or the Company merges, consolidates or amalgamates
with or into any other Person, or any other Person merges, consolidates
or amalgamates with or into the Company, in any such event pursuant to
a transaction in which the outstanding Voting Stock of the Company is
reclassified into or exchanged for cash, securities or other Property,
other than any such transaction where:
(a) the outstanding Voting Stock of the Company is
reclassified into or exchanged all or in part for other Voting
Stock of the Company or for Voting Stock of the Surviving
Person, and
(b) the holders of the Voting Stock of the Company
immediately prior to such transaction own, directly or
indirectly, not less than a majority of the Voting Stock of
the Company or the Surviving Person immediately after such
transaction and in substantially the same proportion as before
the transaction; or
(3) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
(together with any new directors whose election or appointment by such
Board or whose nomination for election by the stockholders of the
Company was approved by a vote of not less than two-thirds of the
directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the Board of Directors then in office; or
(4) the stockholders of the Company shall have approved any
plan of liquidation or dissolution of the Company.
"Clearstream" means Clearstream Banking S.A. and any successor
thereto.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the U.S. Securities and Exchange
Commission.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Reference Treasury Dealer as having a maturity
comparable to the remaining term of the Notes being redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes being redeemed.
"Comparable Treasury Price" means, with respect to any
redemption date:
(1) the average of the bid and ask prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third Business Day preceding such redemption date, as
set forth in the most recently published statistical release designated
"H.15(519)" (or any successor release) published by the Board of
Governors of the Federal Re-
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serve System and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities;" or
(2) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, the
Reference Treasury Dealer Quotation for such redemption date.
"Consolidated Current Liabilities" means, as of any date of
determination, the aggregate amount of liabilities of the Company and its
consolidated Restricted Subsidiaries which may properly be classified as current
liabilities (including taxes accrued as estimated), after eliminating all
current maturities of long-term Debt.
"Consolidated Debt" means, as of any date of determination,
the total Debt of the Company and its consolidated Restricted Subsidiaries.
"Consolidated Debt to Consolidated Tangible Net Worth Ratio"
means, as of any date of determination, the ratio of:
(1) Consolidated Debt to
(2) Consolidated Tangible Net Worth.
For purposes of this ratio, pro forma effect shall be given to any Debt to be
Incurred or repaid on the date of determination, and if the Debt that is the
subject of a determination under this provision is Debt to be Incurred in
connection with the simultaneous acquisition of any Person, business or
Property, then such ratio shall be determined on a pro forma basis, as if the
transaction had occurred on the date of determination.
"Consolidated Interest Coverage Ratio" means, as of any date
of determination, the ratio of:
(1) the aggregate amount of EBITDA for the most recent four
consecutive fiscal quarters ending at least 45 days prior to such
determination date to
(2) Consolidated Interest Incurred for such four fiscal
quarters; provided, however, that:
(a) if
(i) since the beginning of such period the
Company or any Restricted Subsidiary has Incurred any
Debt that remains outstanding or Repaid any Debt, or
(ii) the transaction giving rise to the need
to calculate the Consolidated Interest Coverage Ratio
is an Incurrence or Repayment of Debt,
Consolidated Interest Expense and Consolidated Interest Incurred for
such period shall be calculated after giving effect on a pro forma
basis to such Incurrence or Repayment as if such Debt was Incurred or
Repaid on the first day of such period, provided that the amount of
Debt Incurred under revolving credit facilities shall be deemed to be
the average daily balance of such Debt during such four quarter period
(or any shorter period in which such facilities are in effect) and
provided, further, in the event of any such Repayment of Debt, EBITDA
for such period shall be cal-
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culated as if the Company or such Restricted Subsidiary had not earned
any interest income actually earned during such period in respect of
the funds used to Repay such Debt, and
(b) if
(i) since the beginning of such period the
Company or any Restricted Subsidiary shall have made
any Asset Sale or an Investment (by merger or
otherwise) in any Restricted Subsidiary (or any
Person which becomes a Restricted Subsidiary) or an
acquisition of Property which constitutes all or
substantially all of an operating unit of a business,
(ii) the transaction giving rise to the need
to calculate the Consolidated Interest Coverage Ratio
is such an Asset Sale, Investment or acquisition, or
(iii)since the beginning of such period any
Person (that subsequently became a Restricted
Subsidiary or was merged with or into the Company or
any Restricted Subsidiary since the beginning of such
period) shall have made such an Asset Sale,
Investment or acquisition,
then EBITDA for such period shall be calculated after giving pro forma
effect to such Asset Sale, Investment or acquisition as if such Asset
Sale, Investment or acquisition had occurred on the first day of such
period.
If any Debt bears a floating rate of interest and is being
given pro forma effect, the interest expense on such Debt shall be calculated as
if the base interest rate in effect for such floating rate of interest on the
date of determination had been the applicable base interest rate for the entire
period (taking into account any Interest Rate Agreement applicable to such Debt
if such Interest Rate Agreement has a remaining term in excess of 12 months). In
the event the Capital Stock of any Restricted Subsidiary is sold during the
period, the Company shall be deemed, for purposes of clause (a) above, to have
Repaid during such period the Debt of such Restricted Subsidiary to the extent
the Company and its continuing Restricted Subsidiaries are no longer liable for
such Debt after such sale.
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its consolidated Restricted
Subsidiaries, plus, to the extent not included in such total interest expense,
and to the extent Incurred by the Company or its Restricted Subsidiaries,
(1) interest expense attributable to Capital Lease
Obligations;
(2) amortization of debt discount and debt issuance cost,
including commitment fees;
(3) capitalized interest;
(4) non-cash interest expense;
(5) commissions; discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing;
(6) net costs associated with Hedging Obligations (including
amortization of fees);
(7) Disqualified Stock Dividends;
-7-
(8) Preferred Stock Dividends;
(9) interest Incurred in connection with Investments in
discontinued operations;
(10) interest accruing on any Debt of any other Person to the
extent such Debt is Guaranteed by the Company or any Restricted
Subsidiary;
(11) cash contributions to any employee stock ownership plan
or similar trust to the extent such contributions are used by such plan
or trust to pay interest or fees to any Person (other than the Company)
in connection with Debt Incurred by such plan or trust; and
(12) all interest amortized to cost of sales in such period.
"Consolidated Interest Incurred" means, for any period,
Consolidated Interest Expense, but excluding any interest amortized to cost of
sales in such period.
"Consolidated Net Income" means, for any period, the net
income (loss) of the Company and its consolidated Restricted Subsidiaries;
provided, however, that there shall not be included in such Consolidated Net
Income:
(1) any net income (loss) of any Person (other than the
Company) if such Person is not a Restricted Subsidiary, except that:
(a) subject to the exclusion contained in clause (4)
below, the Company's equity in the net income of any such
Person for such period shall be included in such Consolidated
Net Income up to the aggregate amount of cash distributed by
such Person during such period to the Company or a Restricted
Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution to a Restricted
Subsidiary, to the limitations contained in clause (3) below),
and
(b) the Company's equity in a net loss of any such
Person other than an Unrestricted Subsidiary for such period
shall be included in determining such Consolidated Net Income,
(2) for purposes of Section 4.11 only, any net income (loss)
of any Person acquired by the Company or any of its consolidated
Subsidiaries in a pooling of interests transaction for any period prior
to the date of such acquisition,
(3) any net income (loss) of any Restricted Subsidiary if such
Restricted Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions,
directly or indirectly, to the Company, except that:
(a) subject to the exclusion contained in clause (4)
below, the Company's equity in the net income of any such
Restricted Subsidiary for such period shall be included in
such Consolidated Net Income up to the aggregate amount of
cash distributed by such Restricted Subsidiary during such
period to the Company or another Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a
dividend or other distribution to another Restricted
Subsidiary, to the limitation contained in this clause (3)),
and
(b) the Company's equity in a net loss of any such
Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income,
-8-
(4) any gain (but not loss) realized upon the sale or other
disposition of any Property of the Company or any of its consolidated
Subsidiaries that is not sold or otherwise disposed of in the ordinary
course of business,
(5) any extraordinary, non-recurring or unusual gain or loss,
(6) the cumulative effect of a change in accounting
principles, and
(7) any non-cash compensation expense realized for grants of
performance shares, stock options or other rights to officers,
directors and employees of the Company or any Restricted Subsidiary,
provided that such shares, options or other rights can be redeemed at
the option of the holder only for Capital Stock of the Company (other
than Disqualified Stock).
Notwithstanding the preceding, for purposes of Section 4.11
only, there shall be excluded from Consolidated Net Income any
dividends, repayments of loans or advances or other transfers of
Property from Unrestricted Subsidiaries to the Company or a Restricted
Subsidiary to the extent such dividends, repayments or transfers
increase the amount of Restricted Payments permitted under Section
4.11(a)(iii)(4).
"Consolidated Net Tangible Assets" means, as of any date of
determination, the sum of the amounts that would appear on a consolidated
balance sheet of the Company and its consolidated Restricted Subsidiaries as the
total assets (less accumulated depreciation and amortization, allowances for
doubtful receivables, other applicable reserves and other properly deductible
items) of the Company and its Restricted Subsidiaries, after giving effect to
purchase accounting and after deducting therefrom Consolidated Current
Liabilities and, to the extent otherwise included, the amounts of (without
duplication):
(1) the excess of cost over fair market value of assets or
businesses acquired;
(2) any revaluation or other write-up in book value of assets
subsequent to the last day of the fiscal quarter of the Company
immediately preceding June 25, 2002 as a result of a change in the
method of valuation in accordance with GAAP;
(3) unamortized debt discount and expenses and other
unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, licenses, organization or developmental
expenses and other intangible items;
(4) minority interests in consolidated Subsidiaries held by
Persons other than the Company or any Restricted Subsidiary;
(5) treasury stock;
(6) cash or securities set aside and held in a sinking or
other analogous fund established for the purpose of redemption or other
retirement of Capital Stock to the extent such obligation is not
reflected in Consolidated Current Liabilities; and
(7) Investments in and assets of Unrestricted Subsidiaries.
"Consolidated Net Worth" means, as of any date of
determination, the stockholders' equity of the Company and its consolidated
Restricted Subsidiaries as of such date, as determined in accordance with GAAP.
-9-
"Consolidated Tangible Net Worth" means, as of any date of
determination, the Consolidated Net Worth less the Intangible Assets.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 14.02 or such other address as to
which the Trustee may give notice to the Company.
"Credit Facilities" means, with respect to the Company or any
Restricted Subsidiary, one or more debt or commercial paper facilities with
banks or other institutional lenders (including the Senior Credit Facility)
providing for revolving credit loans, term loans, receivables or inventory
financing (including through the sale of receivables or inventory to such
lenders or to special purpose, bankruptcy remote entities formed to borrow from
such lenders against such receivables or inventory) or trade letters of credit,
in each case together with any Refinancings thereof by a lender or syndicate of
lenders.
"Custodian" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
as Custodian with respect to the Notes, any and all successors thereto appointed
as custodian hereunder and having become such pursuant to the applicable
provisions of this Indenture.
"Debt" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal of, premium (if any) and any other
Obligations in respect of:
(a) debt of such Person for money borrowed, and
(b) debt evidenced by notes, debentures, bonds or
other similar instruments for the payment of which such Person
is responsible or liable;
(2) all Capital Lease Obligations of such Person and
Attributable Debt in respect of Sale and Leaseback Transactions entered
into by such Person;
(3) all obligations of such Person issued or assumed as the
deferred purchase price of Property, all conditional sale obligations
of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable arising in
the ordinary course of business);
(4) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in
clauses (1) through (3) above) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not
drawn upon or, if and to the extent drawn upon, such drawing is
reimbursed no later than the third Business Day following receipt by
such Person of a demand for reimbursement following payment on the
letter of credit);
(5) the amount of all obligations of such Person with respect
to the Repayment of any Disqualified Stock or, with respect to any
Subsidiary of such Person, any Preferred Stock (but excluding, in each
case, any accrued dividends);
(6) all obligations of the type referred to in clauses (1)
through (5) above of other Persons and all dividends of other Persons
for the payment of which, in either case, such Person is
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responsible or liable, directly or indirectly, as obligor, guarantor or
otherwise, including by means of any Guarantee;
(7) all obligations of the type referred to in clauses (1)
through (6) above of other Persons secured by any Lien on any Property
of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of
the Fair Market Value of such Property or the amount of the obligation
so secured; and
(8) to the extent not otherwise included in this definition,
Hedging Obligations of such Person.
The amount of Debt of any Person at any date shall be (x) the accreted value
thereof at such date in the case of any Debt that does not require current
payments of interest, (y) the outstanding balance of all unconditional
obligations as described above at such date and (z) the maximum liability, upon
the occurrence of the contingency giving rise to the obligation, of any
contingent obligations at such date. The amount of Debt represented by a Hedging
Obligation shall be equal to:
(A) zero if such Hedging Obligation has been Incurred pursuant
to Section 4.10(b)(vi), or
(B) the notional amount of such Hedging Obligation if not
Incurred pursuant to such Section 4.10(b)(vi).
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.06, in
substantially the form of Exhibit A hereto except that such Note shall not bear
the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Designated Senior Debt" means:
(1) any Senior Debt that has, at the time of determination, an
aggregate principal amount outstanding of at least $25.0 million
(including the amount of all undrawn commitments and matured and
contingent reimbursement obligations pursuant to letters of credit
thereunder) that is specifically designated in the instrument
evidencing such Senior Debt and is designated in a notice delivered by
the Company to the holders or a Representative of the holders of such
Senior Debt and in an Officers' Certificate delivered to the Trustee as
"Designated Senior Debt" of the Company for purposes of this Indenture,
(2) any Senior Debt outstanding under the Senior Credit
Facility, and
(3) any Senior Debt outstanding under the Senior Notes
Indenture.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
as the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provisions of this Indenture.
-11-
"Disqualified Stock" means any Capital Stock of the Company or
any of its Restricted Subsidiaries that by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable, in either
case at the option of the holder thereof) or otherwise:
(1) matures or is mandatorily redeemable pursuant to a sinking
fund obligation or otherwise,
(2) is or may become redeemable or repurchaseable at the
option of the holder thereof, in whole or in part, or
(3) is convertible or exchangeable at the option of the holder
thereof for Debt or other Disqualified Stock,
on or prior to, in the case of clauses (1), (2) or (3), 30 days after the Stated
Maturity of the Notes.
"Disqualified Stock Dividends" means all dividends with
respect to Disqualified Stock of the Company held by Persons other than a Wholly
Owned Restricted Subsidiary. The amount of any such dividend shall be equal to
the quotient of such dividend divided by the difference between one and the
maximum statutory Federal income tax rate (expressed as a decimal number between
1 and 0) then applicable to the Company.
"Distribution Compliance Period" means the 40-day distribution
compliance period as defined in Regulation S.
"Domestic Restricted Subsidiary" means any Restricted
Subsidiary other than (1) a Foreign Restricted Subsidiary or (2) a Subsidiary of
a Foreign Restricted Subsidiary.
"EBITDA" means, for any period, an amount equal to, for the
Company and its consolidated Restricted Subsidiaries:
(1) the sum of Consolidated Net Income for such period, plus
the following to the extent reducing Consolidated Net Income for such
period:
(a) the provision for taxes based on income or
profits or utilized in computing net loss,
(b) Consolidated Interest Expense,
(c) depreciation,
(d) amortization of intangibles, and
(e) any other non-cash items (other than any such
non-cash item to the extent that it represents an accrual of,
or reserve for, cash expenditures in any future period), minus
(2) all non-cash items increasing Consolidated Net Income for
such period.
Notwithstanding the preceding clause (1), the provision for taxes and the
depreciation, amortization and non-cash items of a Restricted Subsidiary shall
be added to Consolidated Net Income to compute EBITDA only to the extent (and in
the same proportion) that the net income of such Restricted Subsidiary was
included in calculating Consolidated Net Income and only if a corresponding
amount would be per-
-12-
mitted at the date of determination to be dividended to the Company by such
Restricted Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.
"Equity Offering" means any public or private offering of
common stock of the Company other than to an Affiliate of the Company.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System, and any successor thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means new notes of the Company issued in a
registered offer made pursuant to a registration statement filed with, and
declared effective by, the Commission offering to exchange such new notes for
the Notes and the Additional Notes, provided that such new notes have terms
substantially identical in all material respects to the Notes and the Additional
Notes (except that Exchange Notes will not contain terms with respect to
transfer restrictions) for which such offer is being made.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"Fair Market Value" means, with respect to any Property, the
price that could be negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair Market Value
shall be determined, except as otherwise provided,
(1) if such Property has a Fair Market Value equal to or less
than $5.0 million (or $10.0 million in the case of an Investment made
for the contribution of real property), by any Officer of the Company,
or
(2) if such Property has a Fair Market Value in excess of $5.0
million (or $10.0 million in the case of an Investment made for the
contribution of real property), by an Independent Financial Advisor and
evidenced by a written opinion from such Independent Financial Advisor,
dated within 30 days of the relevant transaction, delivered to the
Trustee.
"Foreign Restricted Subsidiary" means any Restricted
Subsidiary which is not organized under the laws of the United States of America
or any State thereof or the District of Columbia.
"GAAP" means United States generally accepted accounting
principles as in effect from time to time.
"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means the global Notes in the form of Exhibit A
hereto issued in accordance with Article 2.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Debt of any other Person and
any obligation, direct or indirect, contingent or otherwise, of such Person:
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(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt of such other Person (whether arising
by virtue of partnership arrangements, or by agreements to keep-well,
to purchase assets, goods, securities or services, to take-or-pay or to
maintain financial statement conditions or otherwise), or
(2) entered into for the purpose of assuring in any other
manner the obligee against loss in respect thereof (in whole or in
part);
provided, however, that the term "Guarantee" shall not include:
(a) endorsements for collection or deposit in the
ordinary course of business, or
(b) a contractual commitment by one Person to invest
in another Person for so long as such Investment is reasonably
expected to constitute a Permitted Investment under clause (1)
or (2) of the definition of "Permitted Investment."
The term "Guarantee" used as a verb has a corresponding meaning. The term
"Guarantor" shall mean any Person Guaranteeing any obligation.
"Hedging Obligation" of any Person means any obligation of
such Person pursuant to any Interest Rate Agreement.
"Holder" means a Person in whose name a Note is registered in
the Security Register.
"IAI Global Note" means the global Note in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold to Institutional Accredited Investors, if any.
"Incur" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by merger, conversion, exchange or
otherwise), extend, assume, Guarantee or become liable in respect of such Debt
or other obligation or the recording, as required pursuant to GAAP or otherwise,
of any such Debt or obligation on the balance sheet of such Person (and
"Incurrence" and "Incurred" shall have meanings correlative to the preceding);
provided, however, that a change in GAAP that results in an obligation of such
Person that exists at such time, and is not theretofore classified as Debt,
becoming Debt shall not be deemed an Incurrence of such Debt; provided further,
however, that any Debt or other obligations of a Person existing at the time
such Person becomes a Subsidiary (whether by merger, consolidation, acquisition
or otherwise) shall be deemed to be Incurred by such Subsidiary at the time it
becomes a Subsidiary.
"Indenture" means this instrument, as originally executed or
as it may from time to time be supplemented or amended in accordance with
Article 9.
"Independent Financial Advisor" means an investment banking
firm of national standing or any third-party appraiser that is determined by a
majority of the independent directors of the Company to be reasonably competent
to issue an opinion or valuation with respect to the matter for which the
Company has engaged it, provided that such firm or appraiser is not an Affiliate
of the Company.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
-14-
"Initial Notes" means $125,000,000 in aggregate principal
amount of Notes issued under this Indenture on the date hereof.
"Initial Purchaser" means Citigroup Global Markets Inc.
"Initial Senior Notes" means $200,000,000 in aggregate
principal amount of Senior Notes issued under the Senior Notes Indenture on June
25, 2002.
"Initial Senior Subordinated Notes" means the $150,000,000
aggregate principal amount of notes issued under the Senior Subordinated Notes
Indenture on June 25, 2002.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act.
"Intangible Assets" means, as of any date of determination,
the amount (to the extent reflected in determining the stockholders' equity of
the Company and its consolidated Restricted Subsidiaries) of (1) all write-ups
(other than write-ups of tangible assets of a going concern business) made
within 12 months after the acquisition of such business in the book value of any
asset, and (2) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, in each case as of such date.
"Interest Rate Agreement" means, for any Person, any interest
rate swap agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement designed to protect against fluctuations in interest
rates.
"Investment" by any Person means any direct or indirect loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of such Person), advance or
other extension of credit or capital contribution (by means of transfers of cash
or other Property to others or payments for Property or services for the account
or use of others, or otherwise) to, or Incurrence of a Guarantee of any
obligation of, or purchase or acquisition of Capital Stock, bonds, notes,
debentures or other securities or evidence of Debt (other than endorsements of
negotiable instruments in the ordinary course business) issued by, any other
Person. For purposes of Sections 4.11 and 4.16 and the definition of "Restricted
Payment," the term "Investment" shall include the portion (proportionate to the
Company's equity interest in such Subsidiary) of the Fair Market Value of the
net assets of any Restricted Subsidiary of the Company at the time that such
Subsidiary is designated an Unrestricted Subsidiary; provided, however, that
upon a redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary,
the Company shall be deemed to continue to have a permanent "Investment" in an
Unrestricted Subsidiary of an amount (if positive) equal to:
(1) the Company's "Investment" in such Subsidiary at the time
of such redesignation, less
(2) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the Fair Market Value of the net assets
of such Subsidiary at the time of such redesignation.
In determining the amount of any Investment made by transfer of any Property
other than cash, such Property shall be valued at its Fair Market Value at the
time of such Investment.
"Investment Grade Rating" means a rating equal to or higher
than Baa3 (or the equivalent) by Xxxxx'x and BBB- (or the equivalent) by S&P.
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"Issue Date" means March 17, 2004.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York, the city in which the Corporate
Trust Office of the Trustee is located, or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Initial Notes for use by
such Holders in connection with a Registered Exchange Offer.
"Lien" means, with respect to any Property of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property (including any Capital
Lease Obligation, conditional sale or other title retention agreement having
substantially the same economic effect as any of the preceding).
"Management Services Agreements" means the Management Services
Agreement dated June 1, 2000, by and between Techolym, L.P. and Newmark Homes
Corp. and any management services agreements entered into between Techolym, L.P.
and Xxxxx Homes, Inc. on substantially the same terms (except as to fees), in
each case as may be amended from time to time.
"Merger" means the merger of Xxxxx Holdings Corp. with and
into Newmark Homes Corp. pursuant to the Agreement and Plan of Merger among
Newmark Homes Corp., Xxxxx Holdings Corp. and Technical Olympic, Inc., dated
April 5, 2002.
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successor to the rating agency business thereof.
"Mortgage" means a first priority mortgage or first priority
deed of trust on improved real property.
"Net Available Cash" from any Asset Sale means cash payments
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring Person of Debt or other obligations
relating to the Property that is the subject of such Asset Sale or received in
any other non-cash form), in each case net of:
(1) all legal, title and recording expenses, commissions and
other fees and expenses incurred, and all Federal, state, provincial,
foreign and local taxes required to be accrued as a liability under
GAAP, as a consequence of such Asset Sale,
(2) all payments made on any Debt that is secured by any
Property subject to such Asset Sale, in accordance with the terms of
any Lien upon such Property, or which must by its terms, or in order to
obtain a necessary consent to such Asset Sale, or by applicable law, be
repaid out of the proceeds from such Asset Sale,
-16-
(3) all distributions and other payments required to be made
to minority interest holders in Subsidiaries or joint ventures as a
result of such Asset Sale, and
(4) the deduction of appropriate amounts provided by the
seller as a reserve, in accordance with GAAP, against any liabilities
associated with the Property disposed in such Asset Sale and retained
by the Company or any Restricted Subsidiary after such Asset Sale;
provided, however, that if any consideration for an Asset Sale (which would
otherwise constitute Net Available Cash) is required to be held in escrow
pending determination of whether a purchase price adjustment will be made, such
consideration (or any portion thereof) shall become Net Available Cash only at
such time as it is released to the Company or its Restricted Subsidiaries from
escrow.
"Non-Recourse Debt," with respect to any Person, means Debt of
such Person for which the sole legal recourse for collection of principal and
interest on such Debt is against the specific property identified in the
instruments evidencing or securing such Debt, and such property was acquired
with the proceeds of such Debt, or such Debt was Incurred within 90 days after
the acquisition of such property.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Debt.
"Offering Memorandum" means the Offering Memorandum dated June
14, 2002 relating to the Senior Subordinated Notes and Senior Notes.
"Officer" means the Chief Executive Officer, the President,
the Chief Financial Officer, the Chief Accounting Officer, the Secretary, the
Treasurer or any Vice President of the Company.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers, at least one of whom shall be the principal
executive officer or principal financial officer of such Person, and delivered
to the Trustee.
"Opinion of Counsel" means, with respect to any Person, a
written opinion from legal counsel who is acceptable to the Trustee. The counsel
may be an employee of or counsel to such Person or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear
or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively, and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream.
"Permitted Business" means the housebuilding and home sales
businesses and any business that is related, ancillary or complementary to the
housebuilding and home sales businesses.
"Permitted Holders" means Technical Olympic, Inc. and
Technical Olympic S.A. or any Person of which either of the preceding companies
"beneficially owns" (as defined in Rule 13d-3 under the Exchange Act),
individually or collectively with the other company, at least a majority of the
total voting power of the Voting Stock of such Person.
"Permitted Investment" means any Investment by the Company or
a Restricted Subsidiary in:
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(1) the Company, any Restricted Subsidiary or any Person that
will, upon the making of such Investment, become a Restricted
Subsidiary, provided that the primary business of such Restricted
Subsidiary is a Permitted Business;
(2) any Person if as a result of such Investment such Person
is merged or consolidated with or into, or transfers or conveys all or
substantially all its Property to, the Company or a Restricted
Subsidiary, provided that such Person's primary business is a Permitted
Business;
(3) cash or Cash Equivalents;
(4) receivables owing to the Company or a Restricted
Subsidiary, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms may include such concessionary
trade terms as the Company or such Restricted Subsidiary deems
reasonable under the circumstances;
(5) receivables or loans owing to the Company or a Restricted
Subsidiary made in connection with the sale of any Property otherwise
permitted under this Indenture;
(6) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary
course of business;
(7) loans and advances to employees made in the ordinary
course of business of the Company or such Restricted Subsidiary, as the
case may be, provided that such loans and advances do not exceed $2.0
million in the aggregate at any one time outstanding;
(8) stock, obligations or other securities received in
settlement of debts created in the ordinary course of business and
owing to the Company or a Restricted Subsidiary or in satisfaction of
judgments;
(9) any Person to the extent such Investment represents the
non-cash portion of the consideration received in connection with (a)
an Asset Sale consummated in compliance with Section 4.13, or (b) any
disposition of Property not constituting an Asset Sale; and
(10) other Investments made for Fair Market Value that do not
exceed $20.0 million in the aggregate outstanding at any one time.
"Permitted Junior Securities" means:
(1) Capital Stock in the Company or any Subsidiary Guarantor
of the Notes; or
(2) debt securities that are subordinated to all Senior Debt
and debt securities that are issued in exchange for Senior Debt to
substantially the same extent as, or to a greater extent than, the
Notes and the Subsidiary Guaranties are subordinated to Senior Debt
under this Indenture and have a Stated Maturity after (and do not
provide for scheduled principal payments prior to) the Stated Maturity
of any Senior Debt and any debt securities issued in exchange for
Senior Debt;
provided, however, that, if such Capital Stock or debt securities are
distributed in a bankruptcy or insolvency proceeding, such Capital Stock or debt
securities are distributed pursuant to a plan of reorganization consented to by
each class of Designated Senior Debt.
-18-
"Permitted Liens" means:
(1) Liens to secure Debt under Credit Facilities and
intercompany loans pledged as security for Senior Debt permitted to be
Incurred under Section 4.10;
(2) Liens to secure Debt permitted to be Incurred under
Section 4.10(b)(iii), provided that any such Lien may not extend to any
Property of the Company or any Restricted Subsidiary, other than the
Property acquired, constructed or leased with the proceeds of such Debt
and any improvements or accessions to such Property;
(3) Liens to secure Debt permitted to be Incurred under
Section 4.10(b)(vii) or (b)(xi), provided that any such Lien may not
extend to any Property of the Company or any Restricted Subsidiary,
other than, in the case of Debt Incurred under such clause (b)(vii),
the mortgages, promissory notes and other collateral that secures
mortgage loans made by the Company or any of its Restricted
Subsidiaries and, in the case of Debt Incurred under such clause
(b)(xi), the collateral that secures the relevant Non-Recourse Debt;
(4) Liens to secure Debt permitted to be Incurred under
Section 4.10(b)(ix), provided that any such Lien may not extend to any
Property of the Company or any Restricted Subsidiary, other than
Property of the Foreign Restricted Subsidiary which incurs such Debt;
(5) Liens for taxes, assessments or governmental charges or
levies on the Property of the Company or any Restricted Subsidiary if
the same shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by
appropriate proceedings promptly instituted and diligently concluded,
provided that any reserve or other appropriate provision that shall be
required in conformity with GAAP shall have been made therefor;
(6) Liens imposed by law, such as carriers', warehousemen's
and mechanics' Liens and other similar Liens, on the Property of the
Company or any Restricted Subsidiary arising in the ordinary course of
business and securing payment of obligations that are not more than 60
days past due or are being contested in good faith and by appropriate
proceedings;
(7) Liens on the Property of the Company or any Restricted
Subsidiary Incurred in the ordinary course of business to secure
performance of obligations with respect to statutory or regulatory
requirements, payment or performance or return-of-money bonds, surety
bonds or other obligations of a like nature and Incurred in a manner
consistent with industry practice, in each case which are not Incurred
in connection with the borrowing of money, the obtaining of advances or
credit or the payment of the deferred purchase price of Property and
which do not in the aggregate impair in any material respect the use of
Property in the operation of the business of the Company and the
Restricted Subsidiaries taken as a whole;
(8) Liens on Property at the time the Company or any
Restricted Subsidiary acquired such Property, including any acquisition
by means of a merger or consolidation with or into the Company or any
Restricted Subsidiary; provided, however, that any such Lien may not
extend to any other Property of the Company or any Restricted
Subsidiary; provided further, however, that such Liens shall not have
been Incurred in anticipation of or in connection with the transaction
or series of transactions pursuant to which such Property was acquired
by the Company or any Restricted Subsidiary;
(9) Liens on the Property of a Person at the time such Person
becomes a Restricted Subsidiary; provided, however, that any such Lien
may not extend to any other Property of the
-19-
Company or any other Restricted Subsidiary that is not a direct
Subsidiary of such Person; provided further, however, that any such
Lien was not Incurred in anticipation of or in connection with the
transaction or series of transactions pursuant to which such Person
became a Restricted Subsidiary;
(10) pledges or deposits by the Company or any Restricted
Subsidiary under workmen's compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of Debt) or leases
to which the Company or any Restricted Subsidiary is party, or deposits
to secure standby letters of credit or public or statutory obligations
of the Company, or deposits for the payment of rent, or deposits made
pursuant to option agreements for land or other real property, in each
case Incurred in the ordinary course of business;
(11) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character;
(12) Liens on the Property of the Company or any Restricted
Subsidiary to secure any Refinancing, in whole or in part, of any Debt
secured by Liens referred to in clauses (2), (8) or (9) above or (17)
below; provided, however, that any such Lien shall be limited to all or
part of the same Property that secured the original Lien (together with
improvements and accessions to such Property), and the aggregate
principal amount of Debt that is secured by such Lien shall not be
increased to an amount greater than the sum of:
(a) the outstanding principal amount, or, if greater,
the committed amount, of the Debt secured by Liens described
under clauses (2), (8) or (9) above or (17) below, as the case
may be, at the time the original Lien became a Permitted Lien
under this Indenture, and
(b) an amount necessary to pay any fees and expenses,
including premiums and defeasance costs, incurred by the
Company or such Restricted Subsidiary in connection with such
Refinancing;
(13) Liens securing any Hedging Obligation;
(14) rights of banks to set off deposits against Debt owed to
such banks;
(15) legal or equitable Liens deemed to exist by reason of
negative pledge covenants and other covenants or undertakings of a like
nature;
(16) [Reserved];
(17) Liens existing on the Issue Date not otherwise described
in clauses (1) through (16) above; and
(18) Liens not otherwise permitted by clauses (1) through (17)
above encumbering Property having an aggregate Fair Market Value not in
excess of 5% of Consolidated Net Tangible Assets, as determined based
on the consolidated balance sheet of the Company as of the end of the
most recent fiscal quarter ending at least 45 days prior to the date
any such Lien shall be Incurred.
-20-
"Permitted Refinancing Debt" means any Debt that Refinances
any other Debt, including any successive Refinancings, so long as:
(1) such Debt is in an aggregate principal amount (or if
Incurred with original issue discount, an aggregate issue price) not in
excess of the sum of:
(a) the aggregate principal amount (or if Incurred
with original issue discount, the aggregate accreted value)
then outstanding of the Debt being Refinanced, and
(b) an amount necessary to pay any fees and expenses,
including premiums and defeasance costs, related to such
Refinancing,
(2) the Average Life of such Debt is equal to or greater than
the Average Life of the Debt being Refinanced,
(3) the Stated Maturity of such Debt is no earlier than the
Stated Maturity of the Debt being Refinanced, and
(4) the new Debt shall not be senior in right of payment to
the Debt that is being Refinanced;
provided, however, that Permitted Refinancing Debt shall not include:
(A) Debt of a Subsidiary that is not a Subsidiary
Guarantor that Refinances Debt of the Company or a Subsidiary
Guarantor, or
(B) Debt of the Company or a Restricted Subsidiary
that Refinances Debt of an Unrestricted Subsidiary.
"Person" means any individual, corporation, company (including
any limited liability company), association, partnership, joint venture, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
the payment of dividends, or as to the distribution of assets upon any voluntary
or involuntary liquidation or dissolution of such Person, over shares of any
other class of Capital Stock issued by such Person.
"Preferred Stock Dividends" means all dividends with respect
to Preferred Stock of Restricted Subsidiaries held by Persons other than the
Company or a Wholly Owned Restricted Subsidiary. The amount of any such dividend
shall be equal to the quotient of such dividend divided by the difference
between one and the maximum statutory Federal income rate (expressed as a
decimal number between 1 and 0) then applicable to the issuer of such Preferred
Stock.
"Private Placement Legend" means the legend set forth in
Section 2.06(g)(i) to be placed on all Notes issued under this Indenture except
as otherwise permitted by the provisions of this Indenture.
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms of this Indenture, a calculation
performed in accordance with Article 11 of Regulation S-X promulgated under the
Securities Act, as interpreted in good faith by the Board of Directors after
consultation with the independent certified public accountants of the Company,
or otherwise a calculation made
-21-
in good faith by the Board of Directors after consultation with the independent
certified public accountants of the Company, as the case may be.
"Property" means, with respect to any Person, any interest of
such Person in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible, including Capital Stock in, and other securities of,
any other Person. For purposes of any calculation required pursuant to this
Indenture, the value of any Property shall be its Fair Market Value.
"Purchase Money Debt" means Debt:
(1) consisting of the deferred purchase price of Property,
conditional sale obligations, obligations under any title retention
agreement, other purchase money obligations and obligations in respect
of industrial revenue bonds, in each case where the maturity of such
Debt does not exceed the anticipated useful life of the Property being
financed, and
(2) Incurred to finance the acquisition, construction or lease
by the Company or a Restricted Subsidiary of the Property being
financed, including additions and improvements thereto;
provided, however, that such Debt is Incurred within 180 days after the
acquisition, construction or lease of such Property by the Company or such
Restricted Subsidiary.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Rating Agencies" means Xxxxx'x and S&P.
"Reference Treasury Dealer" means Xxxxxxx Xxxxx Barney Inc.
and its successors; provided, however, that if it shall cease to be a primary
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotation" means, with respect to
the Reference Treasury Dealer and any redemption date, the average of the bid
and ask prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding such
redemption date.
"Refinance" means, in respect of any Debt, to refinance,
extend, renew, restructure, replace, refund, or Repay, or to issue other Debt,
in exchange or replacement for, such Debt. "Refinanced" and "Refinancing" shall
have correlative meanings.
"Registered Exchange Offer" has the meaning set forth in the
Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement dated March 17, 2004, among the Company, the Subsidiary Guarantors and
the Initial Purchaser, as such agreement may be amended, modified or
supplemented from time to time and, with respect to any Additional Notes, one or
more registration rights agreements between the Company and the other parties
thereto, as such agreement(s) may be amended, modified or supplemented from time
to time, relating to rights given by the Company to the purchasers of Additional
Notes to register such Additional Notes under the Securities Act.
"Regulation S" means Regulation S promulgated under the
Securities Act.
-22-
"Regulation S Global Note" means the global Note in the form
of Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with and registered in the name of the Depositary or its
nominee that will be issued in a denomination equal to the outstanding principal
amount of Notes sold in reliance on Regulation S.
"Repay" means, in respect of any Debt, to repay, prepay,
repurchase, redeem, legally defease or otherwise retire such Debt. "Repayment"
and "Repaid" shall have correlative meanings. For purposes of Section 4.13 and
the definition of "Consolidated Interest Coverage Ratio," Debt shall be
considered to have been Repaid only to the extent the related loan commitment,
if any, shall have been permanently reduced in connection therewith.
"Representative" means the trustee, agent or representative
expressly authorized to act in such capacity, if any, for an issue of Senior
Debt.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means one or more Definitive
Notes bearing the Private Placement Legend.
"Restricted Global Notes" means the 144A Global Note, the IAI
Global Note and the Regulation S Global Note.
"Restricted Payment" means:
(1) any dividend or distribution (whether made in cash,
securities or other Property) declared or paid on or with respect to
any shares of Capital Stock of the Company or any Restricted Subsidiary
(including any payment in connection with any merger or consolidation
with or into the Company or any Restricted Subsidiary), except for any
dividend or distribution that is made solely to the Company or a
Restricted Subsidiary (and, if a Restricted Subsidiary is not a Wholly
Owned Restricted Subsidiary, to the other stockholders of such
Restricted Subsidiary on a pro rata basis or on a basis that results in
the receipt by the Company or a Restricted Subsidiary of dividends or
distributions of greater value than it would receive on a pro rata
basis) or any dividend or distribution payable solely in shares of
Capital Stock (other than Disqualified Stock) of the Company;
(2) the purchase, repurchase, redemption, acquisition or
retirement for value of any Capital Stock of the Company or any
Restricted Subsidiary (other than from the Company or a Restricted
Subsidiary) or any securities exchangeable for or convertible into any
such Capital Stock, including the exercise of any option to exchange
any Capital Stock (other than for or into Capital Stock of the Company
that is not Disqualified Stock);
(3) the purchase, repurchase, redemption, acquisition or
retirement for value, prior to the date for any scheduled maturity,
sinking fund or amortization or other installment payment, of any
Subordinated Debt (other than the purchase, repurchase or other
acquisition of any Subordinated Debt purchased (a) in anticipation of
satisfying a scheduled maturity, sinking fund or amortization or other
installment obligation, in each case due within one year of the date of
acquisition or (b) to the extent of the Excess Proceeds remaining after
compliance with Section 4.13 hereof
-23-
and to the extent required by any covenant similar to that in Section
4.13 hereof contained in the indenture or other agreement or instrument
pursuant to which such Subordinated Debt was issued;
(4) any Investment (other than Permitted Investments) by the
Company or any Restricted Subsidiary in any Person; or
(5) the issuance, sale or other disposition of Capital Stock
of any Restricted Subsidiary to a Person other than the Company or
another Restricted Subsidiary if the result thereof is that such
Restricted Subsidiary shall cease to be a Restricted Subsidiary, in
which event the amount of such "Restricted Payment" shall be the Fair
Market Value of the remaining interest, if any, in such former
Restricted Subsidiary held by the Company and the other Restricted
Subsidiaries.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 903" means Rule 903 promulgated under the Securities
Act.
"Rule 904" means Rule 904 promulgated under the Securities
Act.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement relating to Property now owned or hereafter acquired whereby the
Company or a Restricted Subsidiary transfers such Property to another Person,
and the Company or a Restricted Subsidiary leases it from such Person.
"S&P" means Standard & Poor's Ratings Services or any
successor to the rating agency business thereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facility" means the credit agreement, dated as
of June 25, 2002, by and among the Company, Citicorp North America, Inc., as
Administrative Agent, and the several banks and other financial institutions or
entities from time to time parties thereto, including any related notes,
collateral documents, letters of credit and documentation and Guarantees and any
appendices, exhibits or schedules to any of the preceding, as any or all of such
agreements may be in effect from time to time, in each case, as any or all of
such agreements (or any other agreement that Refinances any or all of such
agreements) may be amended, restated, modified or supplemented from time to
time, or renewed, refunded, Refinanced, restructured, replaced, Repaid or
extended from time to time, whether with the original agents and lenders or
other agents and lenders or otherwise, and whether provided under the original
credit agreement or one or more other credit agreements or otherwise.
"Senior Debt" of the Company means all of its Obligations with
respect to Debt, whether outstanding on the Issue Date of the Notes or
thereafter Incurred, and shall include (i) all obligations for interest accruing
on or after the filing of any petition in bankruptcy or for reorganization
relating to the Company whether or not such post-filing interest is allowed in
such proceeding and (ii) all fees, expenses and indemnities and all other
amounts payable with respect to Debt; provided, however, that Senior Debt shall
not include:
-24-
(1) any obligation in respect of the Notes or other Debt of
the Company that is by its terms subordinate or pari passu in right of
payment to the Notes;
(2) any Debt Incurred in violation of the provisions of this
Indenture;
(3) any obligation of the Company to any Subsidiary; or
(4) any obligations with respect to any Capital Stock of the
Company.
To the extent that any payment of Senior Debt (whether by or on behalf of the
Company as proceeds of security or enforcement or any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required
to be paid to a trustee, receiver or other similar party under any bankruptcy,
insolvency, receivership or similar law, then if such payment is recovered by,
or paid over to, such trustee, receiver or other similar party, the Senior Debt
or part thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment had not occurred. "Senior Debt" of
any Subsidiary Guarantor has a correlative meaning and shall not include any
obligation of such Subsidiary Guarantor to the Company or any other Subsidiary
of the Company.
"Senior Exchange Notes" means new notes of the Company issued
in a registered offer made pursuant to a registration statement filed with, and
declared effective by, the Commission offering to exchange such new notes for
Senior Notes, provided that such new notes have terms substantially identical in
all material respects to the Senior Notes (except that Senior Exchange Notes
will not contain terms with respect to transfer restrictions) for which such
offer is being made.
"Senior Notes" means the 9% Senior Notes due 2010 of the
Company.
"Senior Notes Indenture" means the Indenture, dated as of June
25, 2002, as amended, by and among the Company, the Subsidiary Guarantors and
Xxxxx Fargo Bank, National Association (as successor to Xxxxx Fargo Bank
Minnesota, National Association), as Trustee, governing the Company's Senior
Notes.
"Senior Notes Prepayment Offer" has the meaning set forth
under "Prepayment Offer" in Section 4.13 of the Senior Notes Indenture.
"Senior Subordinated Debt" of the Company means the Notes and
any other subordinated Debt of the Company that specifically provides that such
Debt is to rank pari passu with the Notes and is not subordinated by its terms
to any other subordinated Debt or other obligation of the Company which is not
Senior Debt. "Senior Subordinated Debt" of any Subsidiary Guarantor has a
correlative meaning.
"Senior Subordinated Exchange Notes" means new notes of the
Company issued in a registered offer made pursuant to a registration statement
filed with, and declared effective by, the Commission offering to exchange such
new notes for Senior Subordinated Notes, provided that such new notes have terms
substantially identical in all material respects to the Senior Subordinated
Notes for which such offer is being made.
"Senior Subordinated Notes" means the 10 3/8% Senior
Subordinated Notes due 2012 of the Company (initially issued June 25, 2002).
"Senior Subordinated Notes Indenture" means the Indenture,
dated as of June 25, 2002, as amended, among the Company, the Subsidiary
Guarantors and Xxxxx Fargo Bank, National Associa-
-25-
tion (as successor to Xxxxx Fargo Bank Minnesota, National Association), as
Trustee, governing the Company's Senior Subordinated Notes.
"Senior Subsidiary Guaranty" means a Guarantee on the terms
set forth in the Senior Notes Indenture by a Subsidiary Guarantor of the
Company's Obligations with respect to the Senior Notes.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"Special Interest" has the meaning set forth in Section 4 of
the Registration Rights Agreement.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
"Subordinated Debt" means any Debt of the Company or any
Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter
Incurred) that is subordinate or junior in right of payment to the Notes or any
applicable Subsidiary Guaranty pursuant to a written agreement to that effect.
"Subsidiary" means, in respect of any Person, any corporation,
company (including any limited liability company), association, partnership,
joint venture or other business entity of which a majority of the total voting
power of the Voting Stock is at the time owned or controlled, directly or
indirectly, by:
(1) such Person,
(2) such Person and one or more Subsidiaries of such Person,
or
(3) one or more Subsidiaries of such Person.
"Subsidiary Guarantor" means each Domestic Restricted
Subsidiary of the Company on the Issue Date, except SPV Developers L.L.C.,
Spring Park Village, L.P., SOT Developers, LLC, WPines Developers, L.L.C.,
Woodland Pines, L.P., Xxxxx Homes Reinsurance Limited and Universal Land Title
of Colorado, Inc., and any other Person that becomes a Subsidiary Guarantor
pursuant to Section 4.18 or who otherwise executes and delivers a supplemental
indenture providing for a Subsidiary Guaranty to the Trustee.
"Subsidiary Guaranty" means a Guarantee on the terms set forth
in this Indenture by a Subsidiary Guarantor of the Company's Obligations with
respect to the Notes.
"Surviving Person" means the surviving Person formed by a
merger, consolidation or amalgamation and, for purposes of Section 5.01, a
Person to whom all or substantially all the Property of the Company or a
Subsidiary Guarantor is sold, transferred, assigned, leased, conveyed or
otherwise disposed.
-26-
"TIA" means the Trust Indenture Act of 1939, as amended.
"Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the yield to maturity of the Comparable Treasury
Issue, compounded semi-annually, assuming a price for such Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date. The Treasury Rate will be
calculated on the third Business Day preceding the redemption date.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Definitive Notes" means one or more Definitive
Notes that do not and are not required to bear the Private Placement Legend.
"Unrestricted Global Notes" means one or more Global Notes, in
the form of Exhibit A attached hereto, that do not and are not required to bear
the Private Placement Legend and are deposited with and registered in the name
of the Depositary or its nominee.
"Unrestricted Subsidiary" means:
(1) any Subsidiary of the Company that is designated after the
Issue Date as an Unrestricted Subsidiary as permitted or required
pursuant to Section 4.16 and is not thereafter redesignated as a
Restricted Subsidiary as permitted pursuant thereto; and
(2) any Subsidiary of an Unrestricted Subsidiary.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of
the United States of America (including any agency or instrumentality
thereof) for the payment of which the full faith and credit of the
United States of America is pledged and which are not callable or
redeemable at the issuer's option.
"U.S. Person" has the meaning set forth in Regulation S.
"Voting Stock" of any Person means all classes of Capital
Stock of such Person then outstanding and normally entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof.
"Warehouse Facility" means one or more Credit Facilities and
related mortgage note purchase and sale agreements to finance the making of
mortgage loans originated by the Company or any of its Restricted Subsidiaries
in the ordinary course of business.
"Wholly Owned Restricted Subsidiary" means, at any time, a
Restricted Subsidiary all the Voting Stock of which (except directors'
qualifying shares) is at such time owned, directly or indirectly, by the Company
or its other Wholly Owned Restricted Subsidiaries.
-27-
Section 1.02. Other Definitions.
Defined in
Term Section
--------------------------------------------- ----------
"Affiliate Transaction"...................... 4.15
"Allocable Excess Proceeds".................. 4.13
"Authentication Order"....................... 2.02
"Benefited Party"............................ 10.01
"Change of Control Offer".................... 4.17
"Change of Control Purchase Price"........... 4.17
"Company".................................... Preamble
"Covenant Defeasance"........................ 8.03
"DTC"........................................ 2.03
"Event of Default"........................... 6.01
"Excess Proceeds"............................ 4.13
"Legal Defeasance"........................... 8.02
"losses"..................................... 7.07
"Minimum Net Worth".......................... 4.09
"Net Worth Notice"........................... 4.09
"Net Worth Offer"............................ 4.09
"Net Worth Offer Amount"..................... 4.09
"Net Worth Offer Price"...................... 4.09
"Net Worth Repurchase Date".................. 4.09
"Net Worth Trigger Date"..................... 4.09
"Net Worth Trigger Event".................... 4.09
"Notes"...................................... Preamble
"Paying Agent"............................... 2.03
"Payment Blockage Notice".................... 11.03
"Payment Blockage Period".................... 11.03
"Permitted Debt"............................. 4.10
"Prepayment Offer"........................... 4.13
"Registrar".................................. 2.03
"Security Register".......................... 2.03
"Suspended Covenants"........................ 4.21
Section 1.03. Incorporation by Reference of Trust Indenture Act.
(a) Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
(b) The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes and the Subsidiary
Guaranties;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
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"obligor" on the Notes means the Company, the Subsidiary
Guarantors and any successor obligor upon the Notes or the Subsidiary
Guaranties.
(c) All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule under
the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
(a) Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined herein has the
meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the
plural include the singular;
(v) all references in this instrument to designated
"Articles," "Sections" and other subdivisions are to the designated
Articles, Sections and subdivisions of this instrument as originally
executed;
(vi) 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.
(vii) "including" means "including without limitation";
(viii) provisions apply to successive events and transactions;
and
(ix) references to sections of or rules under the Securities
Act, Exchange Act and TIA shall be deemed to include substitute,
replacement or successor sections or rules adopted by the Commission
from time to time.
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating.
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto, which is hereby
incorporated in and expressly made part of this Indenture. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof. The terms and
provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture, and the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent any provision of any
Note conflicts with the express provisions of this Indenture, the provisions of
this Indenture shall govern and be controlling.
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(b) Form of Notes. The Notes shall be issued initially in global form
and shall be substantially in the form of Exhibit A attached hereto (including
the Global Note Legend thereon and the "Schedule of Exchanges of Interests in
the Global Note" attached thereto). Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but without the Global
Note Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Each Global Note shall represent such of the
outstanding Notes as shall be specified therein, and each shall provide that it
shall represent the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06.
(c) Book-Entry Provisions. This Section 2.01(c) shall only apply to
Global Notes deposited with the Trustee, as custodian for the Depositary.
Participants and Indirect Participants shall have no rights under this Indenture
with respect to any Global Note held on their behalf by the Depositary or by the
Trustee as the custodian for the Depositary or under such Global Note, and the
Depositary shall be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Participants or
Indirect Participants, the Applicable Procedures or the operation of customary
practices of the Depositary governing the exercise of the rights of a holder of
a beneficial interest in any Global Note.
Section 2.02. Execution and Authentication.
(a) Two Officers shall sign the Notes for the Company by manual or
facsimile signature.
(b) If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
(c) A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
(d) The Trustee shall, upon a written order of the Company signed by an
Officer (an "Authentication Order"), authenticate Notes for original issue.
(e) The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders, the
Company or an Affiliate of the Company.
(f) The Company may issue Additional Notes from time to time after the
issuance of the Initial Notes as part of the same series or as an additional
series. The Initial Notes, the Exchange Notes and any Additional Notes
subsequently issued under this Indenture shall be treated as a single class for
all purposes under this Indenture, including, without limitation, waivers,
amendments, redemptions and offers to purchase.
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Section 2.03. Registrar and Paying Agent.
(a) The Company shall maintain an office or agency where Notes may be
presented for registration of, transfer or exchange ("Registrar") and an office
or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange
(the "Security Register"). The Company may appoint one or more co-registrars and
one or more additional paying agents. The term "Registrar" includes any
co-registrar, and the term "Paying Agent" includes any additional paying agent.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company shall notify the Trustee in writing of the name and address
of any Agent not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Company or any of its Subsidiaries may act as Paying Agent or
Registrar.
(b) The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, or interest, including Special
Interest, if any, on, the Notes, and shall notify the Trustee of any default by
the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the money.
If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date or such shorter time as the Trustee may allow, of the names and addresses
of the Holders, and the Company shall otherwise comply with TIA Section 312(a).
Section 2.06. Transfer And Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company
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within 90 days after the date of such notice from the Depositary; (ii) the
Company in its sole discretion at any time determines not to have all Notes
represented by the Global Notes and delivers a written notice to such effect to
the Trustee; or (iii) an Event of Default with respect to the Notes represented
by such Global Notes shall have occurred and be continuing, and the Trustee has
received a request from the Depositary to issue Definitive Notes in lieu of
Global Notes. Upon the occurrence of any of the preceding events in (i), (ii) or
(iii) above, Definitive Notes shall be issued in denominations of $1,000 or
integral multiples thereof and in such names as the Depositary shall instruct
the Trustee. Global Notes also may be exchanged or replaced, in whole or in
part, as provided in Sections 2.07 and 2.10. A Global Note may not be exchanged
for another Note other than as provided in this Section 2.06(a), however,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.06(b), (c) or (f).
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either clause (i) or (ii) below, as applicable, as well as one or more of the
other following clauses, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Distribution
Compliance Period, transfers of beneficial interests in the Regulation
S Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial
interests in any Unrestricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either (1)(A) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (B)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase or (2)(A) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (B) instructions given by the Depositary
to the Registrar containing information regarding the Person in whose
name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (2)(A) above. Upon consummation of a Registered
Exchange Offer by the Company in accordance with Section 2.06(f), the
requirements of this Section 2.06(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of
the requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section
2.06(h).
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(iii) Transfer of Beneficial Interests in a Restricted Global
Note to Another Restricted Global Note. A beneficial interest in any
Restricted Global Note may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in another
Restricted Global Note if the transfer complies with the requirements
of Section 2.06(b)(ii) above and the Registrar receives the following:
(1) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(2) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2)
thereof; and
(3) if the transferee will take delivery in the form
of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications and certificates and
Opinion of Counsel required by item (3) thereof, if
applicable.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) above and:
(1) such exchange or transfer is effected pursuant to
a Registered Exchange Offer in accordance with the
Registration Rights Agreement, and the holder of the
beneficial interest to be transferred, in the case of an
exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (A) a broker-dealer, (B) a Person participating in the
distribution of the Exchange Notes or (C) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(2) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(3) such transfer is effected by a broker-dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(4) the Registrar receives the following:
(A) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a)
thereof; or
(B) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
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and, in each such case set forth in this clause (4), if the
Registrar or the Company so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar or the Company, as the
case may be, to the effect that such exchange or transfer is
in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to clause (2) or (4) above at a time
when an Unrestricted Global Note has not yet been issued, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.02, the Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to clause (2) or (4) above.
(v) Transfer or Exchange of Beneficial Interests in
Unrestricted Global Notes for Beneficial Interests in Restricted Global
Notes Prohibited. Beneficial interests in an Unrestricted Global Note
cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, a beneficial interest in a Restricted Global
Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(2) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(3) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (2) thereof;
(4) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(5) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in clauses (2) through (4) above,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of
Counsel required by item (3)(d) thereof;
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(6) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(7) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(h), and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c)(i) shall be registered in
such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall instruct the Registrar
through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall mail or deliver such Definitive
Notes to the Persons in whose names such Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear
the Private Placement Legend and shall be subject to all restrictions
on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(1) such exchange or transfer is effected pursuant to
a Registered Exchange Offer in accordance with the
Registration Rights Agreement, and the holder of such
beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (A) a
broker-dealer, (B) a Person participating in the distribution
of the Exchange Notes or (C) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(2) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(3) such transfer is effected by a broker-dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(4) the Registrar receives the following:
(A) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in
the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(B) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
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and, in each such case set forth in this clause (4), if the
Registrar or the Company so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar or the Company, as the
case may be, to the effect that such exchange or transfer is
in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii), the Trustee shall cause the aggregate principal amount of
the applicable Global Note to be reduced accordingly pursuant to
Section 2.06(h), and the Company shall execute and the Trustee shall
authenticate and mail or deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(iii) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of
such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall mail or deliver such Definitive Notes to
the Persons in whose names such Notes are so registered. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(1) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(2) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(3) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(4) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(5) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in clauses (2)
through (4) above, a certificate to the
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effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required
by item (3)(d) thereof;
(6) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(7) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (1) above, the appropriate Restricted Global Note, in the case
of clause (2) above, the 144A Global Note, in the case of clause (3)
above, the Regulation S Global Note, and in all other cases, the IAI
Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(1) such exchange or transfer is effected pursuant to
a Registered Exchange Offer in accordance with the
Registration Rights Agreement, and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (A) a broker-dealer, (B) a Person participating in the
distribution of the Exchange Notes or (C) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(2) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(3) such transfer is effected by a broker-dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(4) the Registrar receives the following:
(A) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c)
thereof; or
(B) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this clause (4), if the Registrar
or the Company so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the Registrar or
the Company, as the case may be, to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securi-
-37-
ties Act. Upon satisfaction of the conditions of any of the clauses in
this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes
and increase or cause to be increased the aggregate principal amount of
the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Unrestricted Definitive Note to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
(iv) Transfer or Exchange of Unrestricted Definitive Notes to
Beneficial Interests in Restricted Global Notes Prohibited. An
Unrestricted Definitive Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, beneficial interests
in a Restricted Global Note.
(v) Issuance of Unrestricted Global Notes. If any such
exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to clauses (ii)(2), (ii)(4) or (iii) of this Section
2.06(d) at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02, the Trustee shall authenticate
one or more Unrestricted Global Notes in an aggregate principal amount
equal to the principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the
following:
(1) if the transfer will be made pursuant to Rule
144A, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item
(1) thereof;
(2) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(3) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
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(ii) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(1) such exchange or transfer is effected pursuant to
a Registered Exchange Offer in accordance with the
Registration Rights Agreement, and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (A) a broker-dealer, (B) a Person participating in the
distribution of the Exchange Notes or (C) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(2) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(3) any such transfer is effected by a broker-dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(4) the Registrar receives the following:
(A) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof;
or
(B) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this clause (4), if the
Registrar or the Company so requests, an Opinion of Counsel in
form reasonably acceptable to the Registrar or the Company, as
the case may be, to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Registered Exchange Offer. Upon the occurrence of a Registered
Exchange Offer in accordance with the relevant Registration Rights Agreement,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02, the Trustee shall authenticate (i) one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes
tendered for acceptance by Persons that certify in the applicable Letters of
Transmittal that (1) they are not broker-dealers, (2) they are not participating
in a distribution of the Exchange Notes and (3) they are not affiliates (as
defined in Rule 144) of the Company, and accepted for exchange in the Registered
Exchange Offer and (ii) Unrestricted Definitive Notes in an ag-
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gregate principal amount equal to the principal amount of the Restricted
Definitive Notes tendered for acceptance by Persons who made the foregoing
certification and accepted for exchange in the Registered Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and mail or deliver to the Persons designated by the Holders of
Restricted Definitive Notes so accepted Unrestricted Definitive Notes in the
appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(1) Except as permitted by clause (2) below, each
Global Note and each Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS,
EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) (A "QIB"), (B) IT IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT
OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)(1),(2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "IAI");
(2) AGREES THAT IT WILL NOT RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER
THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2) (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) THAT, PRIOR TO
SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS SECURITY (THE FORM
OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF
SUCH
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TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF SECURITIES LESS THAN $250,000, AN OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY, IF THE COMPANY
SO REQUESTS, THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY, IF THE COMPANY SO
REQUESTS) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND,
IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS
GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE GOVERNING THIS SECURITY
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE
TO REGISTER ANY TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING.
(2) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to clauses (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement
Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE
IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF,
AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE,
(II) THIS GLOBAL NOTE MAY BE EXCHANGED PURSUANT TO SECTION
2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED
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BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11. At any
time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or for Definitive Notes,
the principal amount of Notes represented by such Global Note shall be reduced
accordingly, and an endorsement shall be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly, and an
endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and, upon receipt of an Authentication Order in
accordance with Section 2.02, the Trustee shall authenticate Global
Notes and Definitive Notes upon the Company's order or at the
Registrar's request.
(ii) No service charge shall be made to a Holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.13, 4.17 and
9.06).
(iii) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such registration
of transfer or exchange.
(iv) Neither the Registrar nor the Company shall be required
(1) to issue, to register the transfer of or to exchange any Notes
during a period beginning at the opening of business 15 days before the
day of any selection of Notes for redemption under Section 3.02 and
ending at the close of business on the day of selection, (2) to
register the transfer of or to exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part or (3) to register the transfer of or to
exchange a Note between a record date and the next succeeding interest
payment date.
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(v) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of, premium, if any, and interest, including Special
Interest, if any, on, such Notes and for all other purposes, and none
of the Trustee, any Agent or the Company shall be affected by notice to
the contrary.
(vi) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Sections 2.02 and
2.06(i)(i).
(vii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by
facsimile.
(viii) The Trustee is hereby authorized to enter into a letter
of representations with the Depository in the form provided by the
Company and to act in accordance with such letter.
Section 2.07. Replacement Notes.
(a) If any mutilated Note is surrendered to the Trustee or the Company,
or the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge for its expenses in replacing a Note.
(b) Every replacement Note is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
(a) The Notes outstanding at any time are all the Notes authenticated
by the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section 2.08 as not outstanding. Except as set forth in Section 2.09, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note; however, Notes held by the Company or a Subsidiary of
the Company shall not be deemed to be outstanding for purposes of Section
3.07(c).
(b) If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced note is held by a bona fide purchaser.
(c) If the principal amount of any Note is considered paid under
Section 4.01, it ceases to be outstanding and interest on it ceases to accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
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Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
Section 2.10. Temporary Notes.
(a) Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate Definitive Notes in exchange for temporary Notes.
(b) Holders of temporary Notes shall be entitled to all of the benefits
of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and, at the request of
the Company, shall destroy cancelled Notes (subject to the record retention
requirements of the Exchange Act). Certification of the destruction of all
cancelled Notes shall be delivered to the Company. The Company may not issue new
Notes to replace Notes that it has paid or, except as contemplated by a
Registered Exchange Offer, that have been delivered to the Trustee for
cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest, including
Special Interest, if any, on the Notes, it shall pay the defaulted interest in
any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in
each case at the rate provided in the Notes and in Section 4.01. The Company
shall notify the Trustee in writing of the amount of defaulted interest proposed
to be paid on each Note and the date of the proposed payment. The Company shall
fix or cause to be fixed each such special record date and payment date,
provided that no such special record date shall be less than 10 days prior to
the related payment date for such defaulted interest. At least 15 days before
the special record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Company) shall mail
or cause to be mailed to Holders a notice that states the special record date,
the related payment date and the amount of such interest to be paid.
Section 2.13. CUSIP or ISIN Numbers.
The Company in issuing the Notes may use "CUSIP" or "ISIN"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" or
"ISIN" numbers in notices of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a r-
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edemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify the
Trustee of any change in the "CUSIP" or "ISIN" numbers.
Section 2.14. Special Interest.
If Special Interest is payable by the Company pursuant to the
Registration Rights Agreement and paragraph 1 of the Notes, the Company shall
deliver to the Trustee a certificate to that effect stating (a) the amount of
such Special Interest that is payable and (b) the date on which such interest is
payable. Unless and until a Responsible Officer of the Trustee receives such a
certificate or instruction or direction from the Holders in accordance with the
terms of this Indenture, the Trustee may assume without inquiry that no Special
Interest is payable. The foregoing shall not prejudice the rights of the Holders
with respect to their entitlement to Special Interest as otherwise set forth in
this Indenture or the Notes and pursuing any action against the Company directly
or otherwise directing the Trustee to take any such action in accordance with
the terms of this Indenture and the Notes. If the Company has paid Special
Interest directly to the Persons entitled to it, the Company shall deliver to
the Trustee a certificate setting forth the particulars of such payment.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07, it shall furnish to the Trustee, at least
30 days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (a) the paragraph of the Notes or the Section (or
clause) of this Indenture pursuant to which the redemption shall occur, (b) the
redemption date, (c) the principal amount of Notes to be redeemed and (d) the
redemption price or if the redemption is made pursuant to Section 3.07(b), a
calculation of the redemption price.
Section 3.02. Selection of Notes to be Redeemed.
(a) If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed among the Holders of the Notes on
a pro rata basis, by lot or in accordance with any other method the Trustee
considers fair and appropriate. In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption date by
the Trustee from the outstanding Notes not previously called for redemption.
(b) The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
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(c) The provisions of clauses (a) and (b) of this Section 3.02 shall
not apply with respect to any redemption affecting only a Global Note, whether
such Global Note is to be redeemed in whole or in part, to the extent such
provisions conflict with Applicable Procedures. In case of any such redemption
in part, the unredeemed portion of the principal amount of the Global Note shall
be in an authorized denomination.
Section 3.03. Notice of Redemption.
(a) At least 30 days but not more than 60 days before a redemption
date, the Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at its
registered address.
(b) The notice shall identify the Notes to be redeemed and shall state:
(i) the redemption date;
(ii) the redemption price or if the redemption is made
pursuant to Section 3.07(b), a calculation of the redemption price;
(iii) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(iv) the name and address of the Paying Agent;
(v) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(vi) that, unless the Company defaults in making such
redemption payment, interest, including Special Interest, if any, on
Notes called for redemption ceases to accrue on and after the
redemption date;
(vii) the paragraph of the Notes or Section (or clause) of
this Indenture pursuant to which the Notes called for redemption are
being redeemed; and
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP or ISIN number, if any, listed in such notice or
printed on the Notes.
If any of the Notes to be redeemed is in the form of a beneficial interest in a
Global Note, then the Company shall modify such notice to the extent necessary
to accord with the procedures of the Depositary applicable to redemption.
(c) At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days, or such shorter
period allowed by the Trustee, prior to the redemption date, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in this Section 3.03.
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Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05. Deposit of Redemption Price.
(a) On or before 11:00 a.m. Eastern Time on the Business Day prior to
any redemption date, the Company shall deposit with the Trustee or with the
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 2.04) money sufficient to pay the
redemption price of, and accrued interest, including Special Interest, if any,
on, all Notes to be redeemed on that date. The Trustee or the Paying Agent shall
promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest, including Special Interest, if any,
on, all Notes to be redeemed.
(b) If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest, including Special
Interest, if any, shall cease to accrue on the Notes or the portions of Notes
called for redemption. If a Note is redeemed on or after an interest record date
but on or prior to the related interest payment date, then any accrued and
unpaid interest shall be paid to the Person in whose name such Note was
registered at the close of business on such record date. If any Note called for
redemption shall not be so paid upon surrender for redemption because of the
failure of the Company to comply with the preceding paragraph, interest,
including Special Interest, if any, shall be paid on the unpaid principal from
the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) Except as set forth in clauses (b) and (c) of this Section 3.07,
the Notes will not be redeemable at the option of the Company prior to March 15,
2008. Starting on that date, the Company may redeem all or any portion of the
Notes, at once or over time, after giving the required notice under this
Indenture. The Notes may be redeemed at the redemption prices set forth below,
plus accrued and unpaid interest, including Special Interest, if any, to the
redemption date (subject to the right of Holders on the relevant record date to
receive interest due on the relevant interest payment date). The following
prices are for Notes redeemed during the 12-month period commencing on March 15
of the years set forth below, and are expressed as percentages of principal
amount:
Year Redemption Price
-------------------- ----------------
2008 103.750%
2009 101.875%
2010 and thereafter 100.000%
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(b) At any time prior to March 15, 2008, the Company may, subject to
the terms of the Senior Notes Indenture and its other Senior Debt, redeem all or
any portion of the Notes, at once or over time, after giving the required notice
under this Indenture at a redemption price equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed,
and
(ii) the sum of the present values of (1) the redemption price
of the Notes at March 15, 2008 (as set forth in clause (a) of this
Section 3.07) and (2) the remaining scheduled payments of interest from
the redemption date to March 15, 2008, but excluding accrued and unpaid
interest to the redemption date, discounted to the redemption date at
the Treasury Rate plus 50 basis points,
plus, in either case, accrued and unpaid interest, including Special Interest,
if any, to the redemption date (subject to the right of Holders on the relevant
record date to receive interest due on the relevant interest payment date).
Any notice to Holders of a redemption pursuant to this Section
3.07(b) shall include the appropriate calculation of the redemption price, but
need not include the redemption price itself. The actual redemption price,
calculated as described in this clause (b), shall be set forth in an Officers'
Certificate delivered to the Trustee no later than two Business Days prior to
the redemption date (unless clause (2) of the definition of "Comparable Treasury
Price" is applicable, in which case, such Officers' Certificate will be
delivered on the redemption date).
(c) At any time and from time to time prior to March 15, 2007, the
Company may redeem up to a maximum of 35% of the aggregate principal amount of
the Notes (including any Additional Notes) that have been issued under this
Indenture on or after the Issue Date with the proceeds of one or more Equity
Offerings, at a redemption price equal to 107.50% of the principal amount
thereof, plus accrued and unpaid interest, including Special Interest, if any,
to the redemption date (subject to the right of Holders on the relevant record
date to receive interest due on the relevant interest payment date); provided,
however, that after giving effect to any such redemption, at least 65% of the
aggregate principal amount of the Notes (including any Additional Notes) that
have been issued under this Indenture on or after the Issue Date remains
outstanding. Any such redemption shall be made within 75 days of such Equity
Offering upon not less than 30 nor more than 60 days' prior notice.
(d) Any prepayment pursuant to this Section 3.07 shall be made pursuant
to the provisions of Sections 3.01 through 3.06.
Section 3.08. Mandatory Redemption.
The Company shall not be required to make mandatory redemption
or sinking fund payments with respect to the Notes.
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes.
(a) The Company shall pay or cause to be paid the principal of,
premium, if any, and interest, including Special Interest, if any, on, the Notes
on the dates and in the manner provided in the Notes.
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Principal, premium, if any, and interest, including Special Interest, if any,
shall be considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the due
date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest, including Special Interest, if any, then due. The Company shall pay
Special Interest, if any, in the same manner, on the dates and in the amounts
set forth in the Registration Rights Agreement, the Notes and this Indenture.
(b) The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is 1% per annum in excess of the
rate then in effect; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest,
including Special Interest, if any (without regard to any applicable grace
periods) , from time to time on demand at the same rate to the extent lawful.
(c) Interest shall be computed on the basis of a 360-day year of twelve
30-day months.
Section 4.02. Maintenance of Office or Agency.
(a) The Company shall maintain, in the continental United States, an
office or agency (which may be an office or drop facility of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar, Paying Agent or additional
paying agent) where Notes may be presented or surrendered for payment,
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
(c) The Company hereby designates the Corporate Trust Office of the
Trustee, as one such office, drop facility or agency of the Company in
accordance with Section 2.03.
Section 4.03. Reports.
(a) Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as
any Notes are outstanding, the Company shall file with the Commission and
provide the Trustee and Holders with such annual reports (other than an annual
report on Form 11-K or any successor form) and such information, documents and
other reports as are specified in Sections 13 and 15(d) of the Exchange Act and
applicable to a U.S. corporation subject to such sections, such information,
documents and reports so to be filed with the Commission and provided at the
times specified for the filing of such information, documents and reports under
such Sections; provided, however, that the Company shall not be so obligated to
file such information, documents and reports with the Commission if the
Commission does not permit such filings.
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(b) For so long as any Notes remain outstanding, the Company shall
furnish to the Holders and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
Section 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered to the Trustee pursuant to Section 4.03 above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Article 4 or 5 or, if any such violation
has occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Default, its status and what action the Company is taking or proposes to
take with respect thereto.
Section 4.05. Taxes.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
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Section 4.07. Corporate Existence.
Subject to Article 5, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence, and the corporate, limited liability company, partnership or other
existence of each of its Restricted Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from time to
time) of the Company or any such Restricted Subsidiary; provided, however, that
the Company shall not be required to preserve the corporate, limited liability
company, partnership or other existence of any of its Restricted Subsidiaries if
(i) the cessation of such existence complies with Article 5 or (ii) an Officer
of the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Notes.
Section 4.08. Payments for Consent.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Notes for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of this Indenture or the Notes unless such consideration
is offered to be paid or is paid to all Holders of Notes that consent, waive or
agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
Section 4.09. Maintenance of Consolidated Net Worth.
(a) In the event (the "Net Worth Trigger Event") the Consolidated Net
Worth at the end of each of any two consecutive fiscal quarters ending after the
Issue Date (the last day of such second fiscal quarter being referred to as the
"Net Worth Trigger Date") is less than $150.0 million (the "Minimum Net Worth"),
the Company shall make an offer to all Holders of the Notes (a "Net Worth
Offer") to repurchase Notes in an aggregate principal amount equal to the Net
Worth Offer Amount on a pro rata basis from such Holders, on a Business Day (the
"Net Worth Repurchase Date") that is no earlier than 30 days or later than 60
days following the date the Net Worth Notice is mailed and at a purchase price
equal to 100% of the principal amount thereof, plus accrued and unpaid interest,
including Special Interest, if any, to the Net Worth Repurchase Date (the "Net
Worth Offer Price") (subject to the right of Holders on the relevant record date
to receive interest due on the relevant interest payment date).
(b) The "Net Worth Offer Amount" shall equal 10% of the aggregate
principal amount of the Notes then outstanding (or if less than 10% of the
original aggregate principal amount of such Notes (including any Additional
Notes) issued are then outstanding, the amount of all the Notes outstanding at
the time).
(c) The Company may credit against the Net Worth Offer Amount the
principal amount of Notes acquired by the Company prior to the Net Worth Trigger
Date through purchase, optional redemption or exchange; provided, however, no
credit shall be made for any mandatory repurchase, including, without
limitation, repurchases pursuant to a Change of Control Offer or Prepayment
Offer. Notwithstanding anything in the preceding clauses (a) and (b) to the
contrary, in no event shall the Company's failure to maintain a minimum
Consolidated Net Worth result in requiring it to make more than one Net Worth
Offer. The Company shall notify the Trustee promptly after the occurrence of the
Net Worth Trigger Event and shall notify the Trustee in writing if its
Consolidated Net Worth is less than the Minimum Net Worth for any fiscal quarter
ending after the Issue Date and prior to the Net Worth Repurchase Date.
(d) Within 30 days following the Net Worth Trigger Date, the Company
shall:
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(i) cause a notice of the Net Worth Offer to be sent at least
once to the Dow Xxxxx News Service or a similar business news service
in the United States; and
(ii) send, by first-class mail, with a copy to the Trustee, to
each Holder of Notes, at such Holder's address appearing in the
Security Register, a notice (the "Net Worth Notice") stating:
(1) that a Net Worth Trigger Event has occurred and a
Net Worth Offer is being made and that all Notes timely
tendered will be accepted for payment on a pro rata basis or
otherwise in accordance with DTC's Applicable Procedures;
(2) the Net Worth Offer Price, the Net Worth Offer
Amount and the Net Worth Repurchase Date;
(3) the date by which the Net Worth Offer must be
accepted; and
(4) the procedures that Holders of Notes must follow
in order to tender their Notes (or portions thereof) for
payment, and the procedures that Holders of Notes must follow
in order to withdraw an election to tender Notes (or portions
thereof) for payment.
(e) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to the Net
Worth Offer. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.09, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.09 by virtue of
such compliance.
Section 4.10. Incurrence of Debt.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur, directly or indirectly, any Debt (including any Acquired
Debt) unless, after giving effect to the application of the proceeds thereof, no
Default or Event of Default would occur as a consequence of such Incurrence or
be continuing following such Incurrence and either:
(i) such Debt is Debt of the Company or a Subsidiary
Guarantor, and after giving effect to the Incurrence of such Debt and
the application of the proceeds thereof, either (1) the Consolidated
Interest Coverage Ratio would be greater than 2.0 to 1 or (2) the
Consolidated Debt to Consolidated Tangible Net Worth Ratio would not be
greater than 3.0 to 1; or
(ii) such Debt is Permitted Debt.
(b) The term "Permitted Debt" is defined to include the following:
(i) (1) Debt of the Company evidenced by the Initial Senior
Subordinated Notes and the Senior Subordinated Exchange Notes issued in
exchange for such Initial Senior Subordinated Notes and in exchange for
any Additional Senior Subordinated Notes, (2) Debt of the Subsidiary
Guarantors evidenced by the subsidiary guaranties relating to the
Initial Senior Subordinated Notes and the Senior Subordinated Exchange
Notes issued in exchange for such Initial Senior Subordinated Notes and
in exchange for any Additional Senior Subordinated Notes, (3) Debt of
the Company evidenced by the Initial Senior Notes issued pursuant to
the Senior Notes Indenture and the Senior Exchange Notes issued in
exchange for such Initial Senior Notes and in exchange for any
Additional Senior Notes and (4) Debt of the Subsidiary Guarantors
evidenced by the Sen-
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ior Subsidiary Guaranties relating to the Initial Senior Notes and the
Senior Exchange Notes issued in exchange for such Initial Senior Notes
and in exchange for any Additional Senior Notes;
(ii) Debt of the Company or a Subsidiary Guarantor under
Credit Facilities, provided that the aggregate principal amount of all
such Debt under Credit Facilities at any one time outstanding shall not
exceed the greater of:
(1) $225.0 million, which amount shall be permanently
reduced by the amount of Net Available Cash used to Repay Debt
under Credit Facilities and not subsequently reinvested in
Additional Assets or used to Repay other Debt, pursuant to
Section 4.13 and
(2) 25% of Consolidated Net Tangible Assets;
(iii) Debt of the Company or a Subsidiary Guarantor in respect
of Capital Lease Obligations and Purchase Money Debt, provided that:
(1) the aggregate principal amount of such Debt does
not exceed the Fair Market Value (on the date of the
Incurrence thereof) of the Property acquired, constructed or
leased, and
(2) the aggregate principal amount of all Debt
Incurred and then outstanding pursuant to this clause (iii)
(together with all Permitted Refinancing Debt Incurred and
then outstanding in respect of Debt previously Incurred
pursuant to this clause (iii)) does not exceed $10.0 million;
(iv) Debt of the Company owing to and held by any Wholly Owned
Restricted Subsidiary and Debt of a Restricted Subsidiary owing to and
held by the Company or any Wholly Owned Restricted Subsidiary;
provided, however, that any subsequent issue or transfer of Capital
Stock or other event that results in any such Wholly Owned Restricted
Subsidiary ceasing to be a Wholly Owned Restricted Subsidiary or any
subsequent transfer of any such Debt (except to the Company or a Wholly
Owned Restricted Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of such Debt by the issuer thereof;
(v) Debt of a Restricted Subsidiary outstanding on the date on
which such Subsidiary is acquired by the Company or otherwise becomes a
Restricted Subsidiary (other than Debt Incurred as consideration in, or
to provide all or any portion of the funds or credit support utilized
to consummate, the transaction or series of transactions pursuant to
which such Restricted Subsidiary became a Subsidiary of the Company or
was otherwise acquired by the Company), provided that at the time such
Restricted Subsidiary is acquired by the Company or otherwise becomes a
Restricted Subsidiary and after giving effect to the Incurrence of such
Debt, the Company would have been able to Incur $1.00 of additional
Debt pursuant to clause (a)(i) of this Section 4.10; and provided,
further, such Restricted Subsidiary executes and delivers a
supplemental indenture providing for a Subsidiary Guaranty in
accordance with Section 4.18 to the extent so required by such Section
4.18;
(vi) Debt under Interest Rate Agreements entered into by the
Company or a Subsidiary Guarantor for the purpose of limiting interest
rate risk in the ordinary course of the financial management of the
Company or such Subsidiary Guarantor and not for speculative purposes,
provided that the obligations under such agreements are directly
related to payment obligations on Debt otherwise permitted by the terms
of this Section 4.10;
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(vii) Debt Incurred by the Company or a Subsidiary Guarantor
under a Warehouse Facility, provided that the amount of such Debt
(including funding drafts issued thereunder) outstanding at any time
pursuant to this clause (vii) does not exceed the value of the
Mortgages pledged to secure Debt thereunder;
(viii) Debt in connection with one or more standby letters of
credit or payment or performance bonds issued by the Company or a
Subsidiary Guarantor in the ordinary course of business or pursuant to
self-insurance obligations and not in connection with the borrowing of
money or the obtaining of advances or credit;
(ix) Debt of a Foreign Restricted Subsidiary in an aggregate
principal amount outstanding at any one time not to exceed $15.0
million;
(x) Debt of a Domestic Restricted Subsidiary (other than a
Subsidiary Guarantor) in an aggregate principal amount outstanding at
any one time not to exceed $10.0 million;
(xi) Non-Recourse Debt of the Company or a Restricted
Subsidiary;
(xii) Debt outstanding on the Issue Date not otherwise
described in clauses (i) through (xi) above;
(xiii) Debt of the Company or a Subsidiary Guarantor in an
aggregate principal amount outstanding at any one time not to exceed
$35.0 million; and
(xiv) Permitted Refinancing Debt Incurred in respect of Debt
Incurred pursuant to clause (a)(i) of this Section 4.10 and clauses
(b)(i), (iii), (v) and (xii) of this Section 4.10.
(c) Notwithstanding anything to the contrary contained in this Section
4.10,
(i) the Company shall not, and shall not permit any Subsidiary
Guarantor to, Incur any Debt pursuant to this Section 4.10, other than
pursuant to clause (a)(i) of this Section 4.10 and clause (b)(xiii) of
this Section 4.10, if the proceeds thereof are used, directly or
indirectly, to Refinance any Subordinated Debt in respect of the Notes
or Subsidiary Guaranty unless such Debt shall be subordinated to the
Notes or the applicable Subsidiary Guaranty, as the case may be, to at
least the same extent as such Subordinated Debt;
(ii) the Company shall not permit any Restricted Subsidiary
that is not a Subsidiary Guarantor of the Notes to Incur any Debt
pursuant to this Section 4.10 if the proceeds thereof are used,
directly or indirectly, to Refinance any Debt of the Company or any
Subsidiary Guarantor of the Notes; and
(iii) accrual of interest, accretion or amortization of
original issue discount and the payment of interest or dividends in the
form of additional Debt, will be deemed not to be an Incurrence of Debt
for purpose of this Section 4.10.
(d) For purposes of determining compliance with this Section 4.10, in
the event that an item of Debt meets the criteria of more than one of the
categories of Permitted Debt described in clauses (b)(i) through (b)(xiv) of
this Section 4.10 or is entitled to be incurred pursuant to clause (a)(i) of
this Section 4.10, the Company shall, in its sole discretion, classify such item
of Debt on the date of its Incurrence, or later reclassify all or a portion of
such item of Debt, in any manner that complies with this Section 4.10,
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and such item of Debt will be treated as having been incurred pursuant to one or
more of such categories of Permitted Debt or pursuant to clause (a)(i) of this
Section 4.10.
Section 4.11. Restricted Payments.
(a) The Company shall not make, and shall not permit any Restricted
Subsidiary to make, directly or indirectly, any Restricted Payment if at the
time of, and after giving effect to, such proposed Restricted Payment,
(i) a Default or Event of Default shall have occurred and be
continuing,
(ii) the Company could not Incur at least $1.00 of additional
Debt pursuant to Section 4.10(a)(i), or
(iii) the aggregate amount of such Restricted Payment and all
other Restricted Payments declared or made since June 25, 2002 (the
amount of any Restricted Payment, if made other than in cash, to be
based upon Fair Market Value) would exceed an amount equal to the sum
of:
(1) 45% of the aggregate amount of Consolidated Net
Income accrued during the period (treated as one accounting
period) from the beginning of the fiscal quarter during which
June 25, 2002 occurs to the end of the most recent fiscal
quarter ending at least 45 days prior to the date of such
Restricted Payment (or if the aggregate amount of Consolidated
Net Income for such period shall be a deficit, minus 100% of
such deficit), plus
(2) 100% of the Capital Stock Sale Proceeds, plus
(3) the aggregate net cash proceeds received by the
Company or any Restricted Subsidiary from the issuance or sale
after June 25, 2002 of convertible or exchangeable Debt that
has been converted into or exchanged for Capital Stock (other
than Disqualified Stock) of the Company excluding,
(A) any such Debt issued or sold to the
Company or a Subsidiary of the Company or an employee
stock ownership plan or trust established by the
Company or any such Subsidiary for the benefit of
their employees, and
(B) the aggregate amount of any cash or
other Property distributed by the Company or any
Restricted Subsidiary upon any such conversion or
exchange, plus
(4) an amount equal to the sum of:
(A) the net reduction in Investments in any
Person other than the Company or a Restricted
Subsidiary resulting from dividends, repayments of
loans or advances or other transfers of Property, in
each case to the Company or any Restricted Subsidiary
from such Person since June 25, 2002, and
(B) the portion (proportionate to the
Company's equity interest in such Unrestricted
Subsidiary) of the Fair Market Value of the net
assets of an Unrestricted Subsidiary at the time such
Unrestricted Subsidiary is designated a Restricted
Subsidiary;
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provided, however, that the preceding sum shall not exceed, in
the case of any Person, the amount of Investments previously
made (and treated as a Restricted Payment) by the Company or
any Restricted Subsidiary in such Person, plus
(5) $15.0 million.
(b) Notwithstanding the preceding limitation, the Company or any
Restricted Subsidiary may:
(i) pay dividends on its Capital Stock within 60 days of the
declaration thereof if, on the declaration date, such dividends could
have been paid in compliance with this Indenture; provided, however,
such dividends shall be included in the calculation of the amount of
Restricted Payments;
(ii) purchase, repurchase, redeem, legally defease, acquire or
retire for value its Capital Stock or Subordinated Debt in exchange
for, or out of the proceeds of the substantially concurrent sale of,
Capital Stock of the Company (other than Disqualified Stock, and other
than Capital Stock issued or sold to a Subsidiary of the Company or an
employee stock ownership plan or trust established by the Company or
any such Subsidiary for the benefit of their employees); provided,
however, that
(1) such purchase, repurchase, redemption, legal
defeasance, acquisition or retirement shall be excluded in the
calculation of the amount of Restricted Payments, and
(2) the Capital Stock Sale Proceeds from such
exchange or sale shall be excluded from the calculation
pursuant to clause (a)(iii)(2) of this Section 4.11;
(iii) purchase, repurchase, redeem, legally defease, acquire
or retire for value any of its Subordinated Debt in exchange for, or
out of the proceeds of the substantially concurrent sale of, Permitted
Refinancing Debt;
(iv) so long as no Default or Event of Default has occurred
and is continuing, purchase, repurchase, redeem, legally defease,
acquire or retire for value Capital Stock from any officer, director or
employee of the Company or its Restricted Subsidiaries in an aggregate
amount not to exceed $2.0 million per year;
(v) acquire the Capital Stock of the Company in connection
with the exercise of stock options or stock appreciation rights by way
of cashless exercise or in connection with the satisfaction of
withholding tax obligations;
(vi) in connection with an acquisition by the Company or by
any of its Restricted Subsidiaries, receive or accept the return to the
Company or any of its Restricted Subsidiaries of Capital Stock of the
Company or any of its Restricted Subsidiaries constituting a portion of
the purchase price consideration in settlement of indemnification
claims; and
(vii) purchase fractional shares of the Capital Stock of the
Company arising out of stock dividends, splits or combinations or
business combinations.
(c) Any Restricted Payment described in the preceding clauses (b)(iii)
through (vii) made since June 25, 2002 shall be excluded in the calculation of
the amount of Restricted Payments.
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Section 4.12. Liens.
The Company shall not, and shall not permit any Subsidiary
Guarantor to, directly or indirectly, Incur or suffer to exist, any Lien (other
than Permitted Liens or Liens securing Senior Debt) upon any of its Property
(including Capital Stock of a Restricted Subsidiary), whether owned at the Issue
Date or thereafter acquired, or any interest therein or any income or profits
therefrom securing any Debt of the Company or any Subsidiary Guarantor, unless:
(a) if such Lien secures Senior Subordinated Debt pari passu to the
Notes or any Subsidiary Guaranty, the Notes or the applicable Subsidiary
Guaranty are secured on an equal and ratable basis with such Debt; and
(b) if such Lien secures Subordinated Debt, such Lien shall be
subordinated to a Lien securing the Notes or the applicable Subsidiary Guaranty
in the same Property as that securing such Lien to the same extent as such
Subordinated Debt is subordinated to the Notes and the Subsidiary Guaranties.
Section 4.13. Asset Sales.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Sale unless:
(i) the Company or such Restricted Subsidiary receives
consideration at the time of such Asset Sale at least equal to the Fair
Market Value of the Property subject to such Asset Sale;
(ii) at least 75% of the consideration paid to the Company or
such Restricted Subsidiary in connection with such Asset Sale is in the
form of cash or Cash Equivalents; provided, however, that the amount of
(1) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet) of the Company or such
Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes or any
Subsidiary Guaranty) that are assumed by the transferee of any such
Property pursuant to a customary novation agreement that releases the
Company or such Restricted Subsidiary from further liability and (2)
any securities, notes or other obligations received by the Company or
such Restricted Subsidiary from such transferee that are converted
within 30 days by the Company or such Restricted Subsidiary into cash
(to the extent of the cash received) shall be deemed to be cash for the
purposes of this provision;
(iii) no Default or Event of Default would occur as a result
of such Asset Sale; and
(iv) the Company delivers an Officers' Certificate to the
Trustee certifying that such Asset Sale complies with the preceding
clauses (a)(i) through (iii).
(b) The Net Available Cash (or any portion thereof) from Asset Sales
may be applied by the Company or a Restricted Subsidiary, to the extent the
Company or such Restricted Subsidiary elects (or is required by the terms of any
Debt):
(i) to Repay Senior Debt of the Company or any Subsidiary
Guarantor (excluding, in any such case, any Debt owed to the Company or
an Affiliate of the Company); or
(ii) to reinvest in Additional Assets (including by means of
an Investment in Additional Assets by a Restricted Subsidiary with Net
Available Cash received by the Company or another Restricted
Subsidiary).
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(c) Any Net Available Cash from an Asset Sale not applied in accordance
with the preceding paragraph within 360 days from the date of the receipt of
such Net Available Cash or that is not segregated from the general funds of the
Company for investment in identified Additional Assets in respect of a project
that shall have been commenced, and for which binding contractual commitments
have been entered into, prior to the end of such 360-day period and that shall
not have been completed or abandoned shall constitute "Excess Proceeds";
provided, further, that the amount of any Net Available Cash applied to complete
a Senior Notes Prepayment Offer which is commenced within 365 days from the date
of the receipt of such Net Available Cash shall be deemed to have been applied
within such 360-day period; provided, further, that the amount of any Net
Available Cash that ceases to be so segregated as contemplated above and any Net
Available Cash that is segregated in respect of a project that is abandoned or
completed shall also constitute "Excess Proceeds" at the time any such Net
Available Cash ceases to be so segregated or at the time the relevant project is
so abandoned or completed, as applicable; provided further, however, that the
amount of any Net Available Cash that continues to be segregated for investment
and that is not actually reinvested within 24 months from the date of the
receipt of such Net Available Cash shall also constitute "Excess Proceeds."
(d) When the aggregate amount of Excess Proceeds exceeds $5.0 million
(taking into account income earned on such Excess Proceeds, if any), the Company
will be required to make an offer to repurchase (the "Prepayment Offer") the
Notes, which offer shall be in the amount of the Allocable Excess Proceeds
(rounded to the nearest $1,000), on a pro rata basis according to principal
amount, at a purchase price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest, including Special Interest, if any, to the purchase
date (subject to the right of Holders on the relevant record date to receive
interest due on the relevant interest payment date), in accordance with the
procedures (including prorating in the event of oversubscription) set forth in
this Indenture. To the extent that any portion of the amount of Net Available
Cash remains after compliance with the preceding sentence and provided that all
Holders of Notes have been given the opportunity to tender their Notes for
purchase in accordance with this Indenture, the Company or such Restricted
Subsidiary may use such remaining amount for any purpose permitted by this
Indenture, and the amount of Excess Proceeds will be reset to zero.
(e) The term "Allocable Excess Proceeds" means the product of:
(i) the Excess Proceeds and
(ii) a fraction,
(1) the numerator of which is the aggregate principal
amount of the Notes outstanding on the date of the Prepayment
Offer, and
(2) the denominator of which is the sum of the
aggregate principal amount of the Notes outstanding on the
date of the Prepayment Offer and the aggregate principal
amount of other Debt of the Company outstanding on the date of
the Prepayment Offer that is pari passu in right of payment
with the Notes and subject to terms and conditions in respect
of Asset Sales similar in all material respects to this
Section 4.13 and requiring the Company to make an offer to
purchase such Debt at substantially the same time as the
Prepayment Offer.
(f) Within five Business Days after the Company is obligated to make a
Prepayment Offer as described in clause (d) of this Section 4.13, the Company
shall send a written notice, by first-class mail, to the Holders of Notes,
accompanied by such information regarding the Company and its Subsidiaries as
the Company in good faith believes will enable such Holders to make an informed
decision with respect to such Prepayment Offer. Such notice shall state, among
other things, the purchase price and the pur-
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chase date, which shall be, subject to any contrary requirements of applicable
law, a Business Day no earlier than 30 days nor later than 60 days from the date
such notice is mailed.
(g) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.13. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.13, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.13 by virtue
thereof.
Section 4.14. Restrictions on Distributions from Restricted
Subsidiaries.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist any consensual restriction on the right of any Restricted Subsidiary to:
(i) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Capital Stock, or pay any Debt or
other obligation owed, to the Company or any other Restricted
Subsidiary,
(ii) make any loans or advances to the Company or any other
Restricted Subsidiary, or
(iii) transfer any of its Property to the Company or any other
Restricted Subsidiary.
(b) The preceding limitations will not apply:
(i) with respect to clauses (a)(i), (ii) and (iii), to
restrictions:
(1) in effect on the Issue Date (including, without
limitation, restrictions pursuant to the Senior Credit
Facility),
(2) relating to Debt of a Restricted Subsidiary and
existing at the time it became a Restricted Subsidiary if such
restriction was not created in connection with or in
anticipation of the transaction or series of transactions
pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was acquired by the Company, or
(3) that result from the Refinancing of Debt Incurred
pursuant to an agreement referred to in clause (b)(i)(1) or
(2) or in (b)(ii)(1) or (2) of this Section 4.14, provided
such restrictions are not materially less favorable, taken as
a whole, to the Holders of Notes than those under the
agreement evidencing the Debt so Refinanced, and
(ii) with respect to clause (a)(iii) of this Section 4.14
only, to restrictions:
(1) relating to Debt that is permitted to be Incurred
and secured pursuant to Sections 4.10 and 4.12 that limit the
right of the debtor to dispose of the Property securing such
Debt,
(2) encumbering Property at the time such Property
was acquired by the Company or any Restricted Subsidiary, so
long as such restriction relates solely to the Property so
acquired and was not created in connection with or in
anticipation of such acquisition,
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(3) resulting from customary provisions restricting
subletting or assignment of leases or customary provisions in
other agreements that restrict assignment of such agreements
or rights thereunder,
(4) customary restrictions contained in stock or
asset sale agreements limiting the transfer of such Property
pending the closing of such sale,
(5) customary restrictions contained in joint venture
agreements entered into in the ordinary course of business and
in good faith, or
(6) reasonable and customary borrowing base covenants
set forth in agreements evidencing Debt otherwise permitted by
this Indenture.
Section 4.15. Transactions with Affiliates.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including the purchase, sale,
transfer, assignment, lease, conveyance or exchange of any Property or the
rendering of any service) with, or for the benefit of, any Affiliate of the
Company (an "Affiliate Transaction"), unless:
(i) the terms of such Affiliate Transaction are:
(1) set forth in writing,
(2) in the best interest of the Company or such
Restricted Subsidiary, as the case may be, and
(3) no less favorable to the Company or such
Restricted Subsidiary, as the case may be, than those that
could be obtained in a comparable arm's-length transaction
with a Person that is not an Affiliate of the Company, or, if
there is no such comparable transaction, on terms that are
fair and reasonable to the Company or such Restricted
Subsidiary,
(ii) if such Affiliate Transaction involves aggregate payments
or value in excess of $5.0 million, the Board of Directors (including a
majority of the disinterested members of the Board of Directors)
approves such Affiliate Transaction and, in its good faith judgment,
believes that such Affiliate Transaction complies with clauses
(a)(i)(2) and (3) of this Section 4.15 as evidenced by a Board
Resolution promptly delivered to the Trustee, and
(iii) if such Affiliate Transaction involves aggregate
payments or value in excess of $25.0 million, the Company obtains a
written opinion from an Independent Financial Advisor to the effect
that the consideration to be paid or received in connection with such
Affiliate Transaction is fair, from a financial point of view, to the
Company and the Restricted Subsidiaries.
(b) Notwithstanding the preceding limitation, the following shall not
be Affiliate Transactions:
(i) any transaction or series of related transactions between
the Company and one or more Restricted Subsidiaries or between two or
more Restricted Subsidiaries, provided that no more than 5% of the
total voting power of the Voting Stock (on a fully diluted basis) of
any such Restricted Subsidiary is owned by an Affiliate of the Company
(other than a Restricted Subsidiary);
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(ii) any Restricted Payment permitted to be made pursuant to
Section 4.11 or any Permitted Investment;
(iii) any employment agreement or other employee compensation
plan or arrangement entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business of the
Company or such Restricted Subsidiary and approved by the Board of
Directors in good faith;
(iv) indemnities of officers, directors and employees of the
Company or any of its Restricted Subsidiaries permitted by bylaw or
statutory provisions;
(v) the payment of reasonable and customary regular fees to
directors of the Company or any of its Restricted Subsidiaries who are
not employees of the Company or any Affiliate;
(vi) agreements in effect on June 25, 2002 and disclosed in
the Offering Memorandum (other than the Management Services
Agreements), without regard to any modifications, extensions or
renewals thereof; and
(vii) the Management Services Agreements, provided that
payments made by the Company or any of its Restricted Subsidiaries
under such agreements do not exceed $3.5 million in any fiscal year.
Section 4.16. Designation of Restricted and Unrestricted Subsidiaries.
(a) The Board of Directors may designate any Subsidiary of the Company
to be an Unrestricted Subsidiary if the Subsidiary to be so designated:
(i) does not own any Capital Stock or Debt of, or own or hold
any Lien on any Property of, the Company or any other Restricted
Subsidiary,
(ii) has no Debt other than Debt:
(1) as to which neither the Company nor any of its
Restricted Subsidiaries (A) provides credit support of any
kind (including any undertaking, agreement or instrument that
would constitute Debt), (B) is directly or indirectly liable
as a Guarantor or otherwise, or (C) constitutes the lender;
provided, however, the Company or a Restricted Subsidiary may
loan, advance or extend credit to, or Guarantee the Debt of,
an Unrestricted Subsidiary at any time following the date such
Subsidiary is designated as an Unrestricted Subsidiary in
accordance with Section 4.11,
(2) no default with respect to which (including any
rights that the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit upon
notice, lapse of time or both any holder of any other Debt
(other than the Notes or any Guarantee permitted by the
proviso to the preceding clause (a)(ii)(1)) of the Company or
any of its Restricted Subsidiaries to declare a default on
such other Debt or cause the payment thereof to be accelerated
or payable prior to its Stated Maturity, and
(3) as to which the lenders have been notified in
writing that they will not have any recourse to the stock or
other Property of the Company or any of its Restricted
Subsidiaries, except for Debt that has been Guaranteed as
permitted by the proviso to the preceding clause (a)(ii)(1);
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(iii) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the
Company unless the terms of any such agreement, contract, arrangement
or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time
from Persons who are not Affiliates of the Company;
(iv) is a Person with respect to which neither the Company nor
any of its Restricted Subsidiaries has any direct or indirect
obligation (1) to subscribe for additional Capital Stock or (2) to
maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results;
(v) has not Guaranteed or otherwise directly or indirectly
provided credit support for any Debt of the Company or any of its
Restricted Subsidiaries; and
(vi) has at least one director on its board of directors that
is not a director or executive officer of the Company or any of its
Restricted Subsidiaries and has at least one executive officer that is
not a director or executive officer of the Company or any of its
Restricted Subsidiaries.
(b) Unless so designated as an Unrestricted Subsidiary, any Person that
becomes a Subsidiary of the Company will be classified as a Restricted
Subsidiary; provided, however, that such Subsidiary shall not be designated a
Restricted Subsidiary and shall be automatically classified as an Unrestricted
Subsidiary if either of the requirements set forth in clauses (d)(i) and (ii) of
this Section 4.16 will not be satisfied after giving pro forma effect to such
classification or if such Person is a Subsidiary of an Unrestricted Subsidiary.
(c) Except as provided in the first sentence of clause (a) of this
Section 4.16, no Restricted Subsidiary may be redesignated as an Unrestricted
Subsidiary, and neither the Company nor any Restricted Subsidiary shall at any
time be directly or indirectly liable for any Debt that provides that the holder
thereof may (with the passage of time or notice or both) declare a default
thereon or cause the payment thereof to be accelerated or payable prior to its
Stated Maturity upon the occurrence of a default with respect to any Debt, Lien
or other obligation of any Unrestricted Subsidiary (including any right to take
enforcement action against such Unrestricted Subsidiary). Upon designation of a
Restricted Subsidiary as an Unrestricted Subsidiary in compliance with this
Section 4.16, such Restricted Subsidiary shall, by execution and delivery of a
supplemental indenture, substantially in the form of Exhibit F hereto, be
released from any Subsidiary Guaranty previously made by such Restricted
Subsidiary.
(d) The Board of Directors may designate any Unrestricted Subsidiary to
be a Restricted Subsidiary if, immediately after giving pro forma effect to such
designation,
(i) the Company could Incur at least $1.00 of additional Debt
pursuant to Section 4.10(a)(i), and
(ii) no Default or Event of Default shall have occurred and be
continuing or would result therefrom.
(e) Any such designation or redesignation by the Board of Directors
will be evidenced to the Trustee by filing with the Trustee a Board Resolution
giving effect to such designation or redesignation and an Officers' Certificate
that:
(i) certifies that such designation or redesignation complies
with the preceding provisions, and
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(ii) gives the effective date of such designation or
redesignation,
such filing with the Trustee to occur within 45 days after the end of the fiscal
quarter of the Company in which such designation or redesignation is made (or,
in the case of a designation or redesignation made during the last fiscal
quarter of the Company's fiscal year, within 90 days after the end of such
fiscal year).
Section 4.17. Repurchase at the Option of Holders Upon a Change of
Control.
(a) Upon the occurrence of a Change of Control, the Company shall make
an offer to all Holders of the Notes to repurchase all or any part of a Holder's
Notes pursuant to the terms described below (the "Change of Control Offer") at a
purchase price (the "Change of Control Purchase Price") equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, including Special
Interest, if any, to the repurchase date (subject to the right of Holders on the
relevant record date to receive interest due on the relevant interest payment
date).
(b) Within 30 days following any Change of Control, the Company shall:
(i) cause a notice of the Change of Control Offer to be sent
at least once to the Dow Xxxxx News Service or a similar business news
service in the United States; and
(ii) send, by first-class mail, with a copy to the Trustee, to
each Holder of Notes, at such Holder's address appearing in the
Security Register, a notice stating:
(1) that a Change of Control has occurred and an
offer is being made pursuant to this Section 4.17 and that all
Notes timely tendered will be accepted for payment;
(2) the purchase price and the repurchase date, which
shall be, subject to any contrary requirements of applicable
law, a Business Day no earlier than 30 days nor later than 60
days from the date such notice is mailed;
(3) the circumstances and relevant facts regarding
the Change of Control (including information with respect to
pro forma historical income, cash flow and capitalization
after giving effect to the Change of Control); and
(4) the procedures that Holders of Notes must follow
in order to tender their Notes (or portions thereof) for
payment, and the procedures that Holders of Notes must follow
in order to withdraw an election to tender Notes (or portions
thereof) for payment.
(c) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to a Change
of Control Offer. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.17, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.17 by virtue of
such compliance.
Section 4.18. Future Subsidiary Guarantors.
The Company shall cause each Person that becomes a Domestic
Restricted Subsidiary following the Issue Date to execute and deliver to the
Trustee a supplemental indenture to this Indenture,
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substantially in the form of Exhibit F hereto, providing for a Subsidiary
Guaranty at the time such Person becomes a Domestic Restricted Subsidiary.
Section 4.19. Layered Debt.
The Company shall not, and shall not permit any Subsidiary
Guarantor to, Incur, directly or indirectly, any Debt that is subordinate or
junior in right of payment to any Senior Debt unless such Debt is Senior
Subordinated Debt or is expressly subordinated in right of payment to the Notes
or the Subsidiary Guaranties, as the case may be. In addition, no Subsidiary
Guarantor shall Guarantee, directly or indirectly, any Debt of the Company that
is subordinate or junior in right of payment to any Senior Debt unless such
Guarantee is expressly subordinate in right of payment to, or ranks pari passu
with, the Subsidiary Guaranty of such Subsidiary Guarantor.
Section 4.20. Business Activities.
The Company shall not, and shall not permit any Restricted
Subsidiary, to, directly or indirectly, engage in any business other than the
Permitted Business.
Section 4.21. Covenant Suspension.
(a) During any period of time that:
(i) the Notes have Investment Grade Ratings from both Rating
Agencies; and
(ii) no Default or Event of Default has occurred and is
continuing under this Indenture,
the Company and the Restricted Subsidiaries will not be subject to the following
provisions of this Indenture:
- Section 4.09,
- Section 4.10,
- Section 4.11,
- Section 4.13,
- Section 4.14,
- Section 4.15,
- Section 4.16(d)(i) (and such Section 4.16(d)(i) as referred to
in Section 4.16(b)),
- Section 4.20, and
- Section 5.01(a)(v), (a)(vi), (b)(v) and (b)(vi)
(collectively, the "Suspended Covenants").
(b) In the event that the Company and the Restricted Subsidiaries are
not subject to the Suspended Covenants for any period of time as a result of
clause (a) of this Section 4.21 and, subsequently,
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one or both of the Rating Agencies withdraws its ratings or downgrades the
ratings assigned to the Notes below the required Investment Grade Ratings or a
Default or Event of Default occurs and is continuing, then the Company and the
Restricted Subsidiaries will thereafter again be subject to the Suspended
Covenants, and compliance with the Suspended Covenants with respect to
Restricted Payments made after the time of such withdrawal, downgrade, Default
or Event of Default will be calculated in accordance with the terms of Section
4.11 as though such Section 4.11 had been in effect during the entire period of
time from the Issue Date, it being understood that no actions taken by the
Company or any of its Restricted Subsidiaries during the suspension period shall
constitute a Default or an Event of Default under the Suspended Covenants.
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Property.
(a) The Company shall not merge, consolidate or amalgamate with or into
any other Person (other than a merger of a Wholly Owned Restricted Subsidiary
into the Company or, subject to compliance with Section 4.11, a merger of a
Subsidiary Guarantor into the Company) or sell, transfer, assign, lease, convey
or otherwise dispose of all or substantially all its Property in any one
transaction or series of related transactions unless:
(i) the Company shall be the Surviving Person, or the
Surviving Person (if other than the Company) formed by such merger,
consolidation or amalgamation or to which such sale, transfer,
assignment, lease, conveyance or disposition is made shall be a
corporation organized and existing under the laws of the United States
of America, any State thereof or the District of Columbia;
(ii) the Surviving Person (if other than the Company)
expressly assumes, by supplemental indenture, substantially in the form
of Exhibit F hereto, executed and delivered to the Trustee by such
Surviving Person, the due and punctual payment of the principal of, and
premium, if any, and interest on, all the Notes, according to their
tenor, and the due and punctual performance and observance of all the
covenants of this Indenture to be performed by the Company;
(iii) in the case of a sale, transfer, assignment, lease,
conveyance or other disposition of all or substantially all the
Property of the Company, such Property shall have been transferred as
an entirety or virtually as an entirety to one Person;
(iv) immediately after giving effect to such transaction or
series of related transactions on a pro forma basis (and treating, for
purposes of this clause (iv) and clauses (v) and (vi) of this Section
5.01(a), any Debt that becomes, or is anticipated to become, an
obligation of the Surviving Person or any Restricted Subsidiary as a
result of such transaction or series of related transactions as having
been Incurred by the Surviving Person or such Restricted Subsidiary at
the time of such transaction or series of related transactions), no
Default or Event of Default shall have occurred and be continuing;
(v) immediately after giving effect to such transaction or
series of related transactions on a pro forma basis, the Company or the
Surviving Person, as the case may be, would be able to Incur at least
$1.00 of additional Debt under Section 4.10(a)(i);
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(vi) immediately after giving effect to such transaction or
series of related transactions on a pro forma basis, the Surviving
Person shall have a Consolidated Net Worth in an amount which is not
less than the Consolidated Net Worth of the Company immediately prior
to such transaction or series of related transactions; and
(vii) the Company shall deliver, or cause to be delivered, to
the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each
stating that such transaction or series of related transactions and the
supplemental indenture, if any, in respect thereto comply with this
Section 5.01(a) and that all conditions precedent herein provided for
relating to such transaction or series of related transactions have
been satisfied.
(b) The Company shall not permit any Subsidiary Guarantor to merge,
consolidate or amalgamate with or into any other Person (other than a merger of
a Wholly Owned Restricted Subsidiary into such Subsidiary Guarantor or the
Company or subject to compliance with Section 4.11, a merger of a Subsidiary
Guarantor into the Company) or sell, transfer, assign, lease, convey or
otherwise dispose of all or substantially all its Property in any one
transaction or series of related transactions unless:
(i) the Surviving Person (if other than such Subsidiary
Guarantor) formed by such merger, consolidation or amalgamation or to
which such sale, transfer, assignment, lease, conveyance or disposition
is made shall be a corporation, company (including a limited liability
company) or partnership organized and existing under the laws of the
United States of America, any State thereof or the District of
Columbia;
(ii) the Surviving Person (if other than such Subsidiary
Guarantor) expressly assumes, by supplemental indenture, substantially
in the form of Exhibit F hereto, executed and delivered to the Trustee
by such Surviving Person, the due and punctual performance and
observance of all the obligations of such Subsidiary Guarantor under
its Subsidiary Guaranty;
(iii) in the case of a sale, transfer, assignment, lease,
conveyance or other disposition of all or substantially all the
Property of such Subsidiary Guarantor, such Property shall have been
transferred as an entirety or virtually as an entirety to one Person;
(iv) immediately after giving effect to such transaction or
series of related transactions on a pro forma basis (and treating, for
purposes of this clause (iv) and clauses (v) and (vi) of this Section
5.01(b), any Debt that becomes, or is anticipated to become, an
obligation of the Surviving Person, the Company or any Restricted
Subsidiary as a result of such transaction or series of transactions as
having been Incurred by the Surviving Person, the Company or such
Restricted Subsidiary at the time of such transaction or series of
related transactions), no Default or Event of Default shall have
occurred and be continuing;
(v) immediately after giving effect to such transaction or
series of related transactions on a pro forma basis, the Company would
be able to Incur at least $1.00 of additional Debt under Section
4.10(a)(i);
(vi) immediately after giving effect to such transaction or
series of related transactions on a pro forma basis, the Company shall
have a Consolidated Net Worth in an amount which is not less than the
Consolidated Net Worth of the Company immediately prior to such
transaction or series of related transactions; and
(vii) the Company shall deliver, or cause to be delivered, to
the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel,
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each stating that such transaction or series of related transactions
and such Subsidiary Guaranty, if any, in respect thereto comply with
this Section 5.01(b) and that all conditions precedent herein provided
for relating to such transaction or series of related transactions have
been satisfied.
The preceding clause (b) (other than clause (b)(iv)) shall not apply to any
transaction or series of related transactions which constitutes an Asset Sale if
the Company has complied with Section 4.13.
Section 5.02. Successor Corporation Substituted.
The Surviving Person shall succeed to, and be substituted for,
and may exercise every right and power of the Company under this Indenture (or
of the Subsidiary Guarantor under the Subsidiary Guaranty, as the case may be),
but the predecessor company in the case of a lease shall not be released from
any of the obligations or covenants under this Indenture, including with respect
to the payment of the Notes.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
(a) Each of the following is an "Event of Default":
(i) failure to make the payment of any interest, including
Special Interest, if any, on the Notes issued under this Indenture when
the same becomes due and payable, and such failure continues for a
period of 30 days;
(ii) failure to make the payment of any principal of, or
premium, if any, on, any of the Notes issued under this Indenture when
the same becomes due and payable at their Stated Maturity, upon
acceleration, redemption, required repurchase or otherwise;
(iii) failure to comply with Section 5.01;
(iv) failure to comply with any other covenant or agreement in
the Notes or in this Indenture (other than a failure that is the
subject of the preceding clause (i), (ii) or (iii)), and such failure
continues for 30 days after written notice is given to the Company as
provided in Section 6.01(b);
(v) a default under any Debt (other than Non-Recourse Debt) by
the Company or any Restricted Subsidiary that results in acceleration
of the maturity of such Debt, or failure to pay any such Debt at
maturity, in an aggregate amount greater than $10.0 million;
(vi) any judgment or judgments for the payment of money in an
aggregate amount in excess of $10.0 million that shall be rendered
against the Company or any Restricted Subsidiary and that shall not be
waived, satisfied or discharged for any period of 30 consecutive days
during which a stay of enforcement shall not be in effect;
(vii) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
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(1) commences a voluntary case,
(2) consents to the entry of an order for relief
against it in an involuntary case,
(3) consents to the appointment of a custodian of it
or for all or substantially all of its property,
(4) makes a general assignment for the benefit of its
creditors, or
(5) generally is not paying its debts as they become
due;
(viii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(1) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
(2) appoints a custodian of the Company or any
Significant Subsidiary or for all or substantially all of the
property of the Company or any Significant Subsidiary, or
(3) orders the liquidation of the Company or any
Significant Subsidiary, and the order or decree remains
unstayed and in effect for 60 days; or
(ix) any Subsidiary Guaranty relating to the Notes ceases to
be in full force and effect (other than in accordance with the terms of
such Subsidiary Guaranty), or any Subsidiary Guarantor denies or
disaffirms its obligations under its Subsidiary Guaranty relating to
the Notes.
(b) A Default under clause (a)(iv) is not an Event of Default in
respect of the Notes until the Trustee or the Holders of not less than 25% in
aggregate principal amount of Notes then outstanding notify the Company of the
Default, and the Company does not cure such Default within the time specified
after receipt of such notice. Such notice must specify the Default, demand that
it be remedied and state that such notice is a "Notice of Default."
Section 6.02. Acceleration.
(a) If an Event of Default (other than an Event of Default specified in
Section 6.01(a)(vii) or (a)(viii)), shall have occurred and be continuing, the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Notes then outstanding may declare to be immediately due and payable the
principal amount of all the Notes then outstanding, plus accrued but unpaid
interest, including Special Interest, if any, to the date of acceleration. In
the case of an Event of Default specified in Section 6.01(a)(vii) or (a)(viii),
such amount with respect to all the Notes will become due and payable
immediately without any declaration or other act on the part of the Trustee or
the Holders. Holders may not enforce this Indenture or the Notes except as
provided in this Indenture.
(b) In the event of a declaration of acceleration of the Notes because
an Event of Default has occurred and is continuing as a result of the
acceleration of any Debt described in Section 6.01(a)(v), the declaration of
acceleration of the Notes shall be automatically annulled if the holders of any
Debt described in Section 6.01(a)(v) have rescinded the declaration of
acceleration in respect of such Debt within 30 days of the date of such
declaration and if (i) the annulment of the acceleration of the Notes would not
conflict with any judgment or decree of a court of competent jurisdiction, and
(ii) all existing Events of
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Default, except nonpayment of principal or interest on the Notes that became due
solely because of the acceleration of the Notes, have been cured or waived.
Section 6.03. Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of, premium, if
any, and interest, including Special Interest, if any, on, the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal
amount of the then outstanding Notes by notice to the Trustee may on behalf of
the Holders of all of the Notes waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of the principal of, premium, if any, or interest, including
Special Interest, if any, on, the Notes; provided, however, that after any
acceleration, but before a judgment or decree based on acceleration is obtained
by the Trustee, the Holders of a majority in aggregate principal amount of the
Notes then outstanding may rescind and annul such acceleration if all Events of
Default, other than the nonpayment of accelerated principal, premium, if any, or
interest, including Special Interest, if any, have been cured or waived as
provided in this Indenture. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.
Section 6.05. Control by Majority.
Subject to Section 7.01, in case an Event of Default shall
occur and be continuing, the Trustee will not be under any obligation to
exercise any of its rights or powers under this Indenture at the request or
direction of any of the Holders, unless such Holders shall have offered to the
Trustee reasonable indemnity. Subject to Section 7.07, the Holders of a majority
in aggregate principal amount of the Notes then outstanding will have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Notes.
Section 6.06. Limitation on Suits.
(a) No Holder will have any right to institute any proceeding with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default,
(ii) the Holders of at least 25% in aggregate principal amount
of Notes then outstanding under this Indenture have made written
request and offered reasonable indemnity to the Trustee to institute
such proceeding as trustee, and
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(iii) the Trustee shall not have received from the Holders of
a majority in aggregate principal amount of Notes then outstanding a
direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days.
However, the preceding limitations do not apply to a suit instituted by a Holder
for enforcement of payment of the principal of, and premium, if any, or
interest, including Special Interest, if any, on, a Note on or after the
respective due dates expressed in such Note.
(b) A Holder may not use this Indenture to affect, disturb or prejudice
the rights of another Holder or to obtain a preference or priority over another
Holder.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of, premium, if any, and
interest, including Special Interest, if any, on, a Note, on or after the
respective due dates expressed in the Note (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(i) or
(a)(ii) occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Company for the
whole amount of principal, premium, if any, and interest, including Special
Interest, if any, remaining unpaid on the Notes and interest on overdue
principal and, to the extent lawful, interest and such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims, and any custodian in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 out of the
estate in any such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
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Section 6.10. Priorities.
(a) If the Trustee collects any money pursuant to this Article 6, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07, including payment of all compensation, expenses
and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, including Special Interest,
if any, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Notes for principal, premium, if
any, and interest, including Special Interest, if any, respectively;
and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
(b) The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture, and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. How-
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ever, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this clause (c) does not limit the effect of clause (b) of
this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to clauses (a),
(b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request or direction of any Holders, unless such Holders shall have offered to
the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel, and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
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(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
Default or Event of Default is received by a Responsible Officer of the Trustee
at the Corporate Trust Office of the Trustee, and such notice references the
specific Default or Event of Default, the Notes and this Indenture.
(h) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
(i) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(j) The Trustee shall have no duty to inquire as to the performance of
the Company's covenants herein.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights and duties. The Trustee is
also subject to Sections 7.10 and 7.11.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to Holders a notice of the
Default or Event of Default within 90 days after it occurs unless such Default
or Event of Default has since been cured. Except in the case of a Default or
Event of Default in payment of principal of, premium, if any, or interest,
including Special Interest, if any, on, any Note, the Trustee may withhold
notice of any continuing Default or Event of Default if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interest of the Holders.
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Section 7.06. Reports by Trustee to Holders.
(a) Within 60 days after each May 15 beginning with May 15, 2004, and
for so long as Notes remain outstanding, the Trustee shall mail to the Holders a
brief report dated as of such reporting date that complies with TIA Section
313(a) (but if no event described in TIA Section 313(a) has occurred within the
12 months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with TIA Section 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to the Holders
shall be mailed to the Company and filed with the Commission and each stock
exchange on which the Notes are listed in accordance with TIA Section 313(d).
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange.
Section 7.07. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of its duties under this Indenture and services
hereunder as agreed to in writing. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee or any predecessor Trustee
against any and all losses, claims, damages, penalties, fines, liabilities or
expenses, including incidental and out-of-pocket expenses and reasonable
attorneys fees ("losses") incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Indenture, including
the costs and expenses of enforcing this Indenture against the Company
(including this Section 7.07) and defending itself against any claim (whether
asserted by the Company or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such losses may be attributable to its
negligence, willful misconduct or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim, and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel, and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
(c) The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
(d) To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal of,
premium, if any, and interest, including Special Interest, if any, on,
particular Notes. Such Lien shall survive the satisfaction and discharge of this
Indenture.
(e) When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(a)(vii) or (a)(viii) occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
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(f) The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.08. Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time upon 30 days' prior
notice to the Company and be discharged from the trust hereby created by so
notifying the Company. The Holders of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the
Company in writing. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged to be bankrupt or insolvent, or
an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(iii) a custodian or public officer takes charge of the
Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
(d) If a successor Trustee does not take office within 30 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company,
or the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee; provided, however, that all sums
owing to the Trustee hereunder shall have been paid. Notwithstanding replacement
of the Trustee pursuant to this Section 7.08, the Company's obligations under
Section 7.07 shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee. As soon as practicable, the successor Trustee shall mail a
notice of its succes-
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sion to the Company and the Holders. Any such successor must nevertheless be
eligible and qualified under the provisions of Section 7.10.
Section 7.10. Eligibility; Disqualification.
(a) There shall at all times be a Trustee hereunder that is a Person
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by Federal or state
authorities and that has a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition.
(b) This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at its option and at any time, elect to have
either Section 8.02 or 8.03 be applied to all outstanding Notes upon compliance
with the conditions set forth below in this Article 8.
Section 8.02. Legal Defeasance.
Upon the Company's exercise under Section 8.01 of the option
applicable to this Section 8.02, subject to the satisfaction of the conditions
set forth in Section 8.04, the Company shall be deemed to have been discharged
from its obligations with respect to all outstanding Notes, and each Subsidiary
Guarantor shall be deemed to have been discharged from its obligations with
respect to its Subsidiary Guaranty, on the date the conditions set forth below
are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Debt represented by the outstanding Notes, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05 and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Notes and this Indenture, and
each Subsidiary Guarantor shall be deemed to have satisfied all its obligations
under its Subsidiary Guaranty and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.04, and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest, including Special Interest, if any,
on, such Notes when such payments are due, (b) the Company's obligations with
respect to such Notes under Article 2 and Section 4.02, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Company's
obligations in connection therewith and (d) this Article 8. If the Company
exercises under
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Section 8.01 the option applicable to this Section 8.02, subject to the
satisfaction of the conditions set forth in Section 8.04, payment of the Notes
may not be accelerated because of an Event of Default. Subject to compliance
with this Article 8, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04, be released from its obligations
under the covenants contained in Sections 4.03, 4.04(b), 4.05, 4.09 through 4.18
and 4.20 through 4.21, and the limitations of Section 5.01(a)(v), (a)(vi),
(b)(v) and (b)(vi), with respect to the outstanding Notes on and after the date
the conditions set forth in Section 8.04 are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01,
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby. If the Company exercises under Section 8.01 the
option applicable to this Section 8.03, subject to the satisfaction of the
conditions set forth in Section 8.04, payment of the Notes may not be
accelerated because of an Event of Default specified in Section 6.01 (a)(iii)
(with respect to the covenants contained in Sections 5.01(a)(v), (a)(vi), (b)(v)
or (b)(vi) only), (a)(iv) (with respect to the covenants contained in Sections
4.03, 4.04(b), 4.05, 4.09 through 4.18 and 4.20 through 4.21), (a)(v), (a)(vi),
(a)(vii) and (a)(viii) (but in the case of clauses (a)(vii) and (a)(viii), with
respect to Significant Subsidiaries only). If the Company exercises its Covenant
Defeasance option, each Subsidiary Guarantor will be released from all its
obligations under its Subsidiary Guaranty.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The Legal Defeasance option or Covenant Defeasance option may
be exercised only if:
(a) the Company irrevocably deposits in trust with the Trustee money or
U.S. Government Obligations for the payment of principal of, premium, if any,
and interest, including Special Interest, if any, on, the Notes to be defeased
to maturity or redemption, as the case may be;
(b) the Company delivers to the Trustee a certificate from a nationally
recognized firm of independent certified public accountants expressing their
opinion that the payments of principal, premium, if any, and interest, including
Special Interest, if any, when due and without reinvestment on the deposited
U.S. Government Obligations plus any deposited money without investment will
provide cash at such times and in such amounts as will be sufficient to pay
principal, premium, if any, and interest, including Special Interest, if any,
when due on all the Notes to be defeased to maturity or redemption, as the case
may be;
(c) no Default or Event of Default has occurred and is continuing on
the date of such deposit and after giving effect thereto;
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(d) such deposit does not constitute a default under any other
agreement or instrument binding on the Company;
(e) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company Act of
1940;
(f) in the case of the Legal Defeasance option, the Company delivers to
the Trustee an Opinion of Counsel stating that:
(i) the Company has received from the Internal Revenue Service
a ruling, or
(ii) since the date of this Indenture there has been a change
in the applicable Federal income tax law, to the effect, in either
case, that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the Notes to be defeased will not recognize
income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same time as would have been the
case if such defeasance had not occurred;
(g) in the case of the Covenant Defeasance option, the Company delivers
to the Trustee an Opinion of Counsel to the effect that the Holders of the Notes
to be defeased will not recognize income, gain or loss for Federal income tax
purposes as a result of such Covenant Defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred; and
(h) the Company delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the defeasance
and discharge of the Notes to be defeased have been complied with as required by
this Indenture.
Section 8.05. Deposited Money And Government Securities To Be Held In
Trust; Other Miscellaneous Provisions.
(a) Subject to Section 8.06, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the "Trustee") pursuant
to Section 8.04 in respect of the outstanding Notes shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, including Special Interest, if any, but such
money need not be segregated from other funds except to the extent required by
law.
(b) The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or U.S. Government
Obligations deposited pursuant to Section 8.04 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Notes.
(c) Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or U.S. Government Obligations held by it as provided
in Section 8.04 which, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the certification delivered under
Section 8.04(b)), are in excess of the amount thereof
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that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
Section 8.06. Repayment to Company.
Subject to applicable escheat and abandoned property laws, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest, including Special Interest, if any, on, any Note and remaining
unclaimed for two years after such principal, premium, if any, or interest,
including Special Interest, if any, has become due and payable shall be paid to
the Company on its request or (if then held by the Company) shall be discharged
from such trust; and the Holder shall thereafter, as an unsecured creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in The New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining shall be repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Obligations in accordance with Section 8.02 or
8.03, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
and each Subsidiary Guarantor's obligations under this Indenture and its
Subsidiary Guaranty shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03, as the case may be; provided, however, that, if the Company or any
Subsidiary Guarantor makes any payment of principal of, premium, if any, or
interest, including Special Interest, if any, on, any Note following the
reinstatement of its obligations, then it shall be subrogated to the rights of
the Holders to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
(a) Notwithstanding Section 9.02 of this Indenture, the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement this Indenture or
the Notes without the consent of any Holder to:
(i) cure any ambiguity, omission, defect or inconsistency;
(ii) provide for the assumption by a Surviving Person of the
obligations of the Company under this Indenture or of a Subsidiary
Guarantor under this Indenture and its Subsidiary Guaranty;
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(iii) provide for uncertificated Notes in addition to or in
place of certificated Notes (provided that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code,
or in a manner such that the uncertificated Notes are described in
Section 163(f)(2)(B) of the Code);
(iv) add additional Guarantees with respect to the Notes or to
release Subsidiary Guarantors from Subsidiary Guaranties as provided by
the terms of this Indenture;
(v) secure the Notes, add to the covenants of the Company for
the benefit of the Holders of the Notes or surrender any right or power
conferred upon the Company;
(vi) make any change that does not adversely affect in any
material respect the rights of any Holder of the Notes under this
Indenture;
(vii) make any change to the subordination provisions of this
Indenture that would limit or terminate the benefits available to any
holder of Senior Debt under such provisions, subject to Section 9.03;
(viii) comply with any requirement of the Commission in
connection with the qualification of this Indenture under the TIA; or
(ix) provide for the issuance of additional Notes in
accordance with this Indenture.
(b) Upon the request of the Company accompanied by a Board Resolution
of the Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 9.07, the Trustee shall join with the Company and the
Subsidiary Guarantors in the execution of any amended or supplemental indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
indenture that affects its own rights, duties or immunities under this Indenture
or otherwise.
Section 9.02. With Consent of Holders of Notes.
(a) Except as provided in Section 9.02(f), the Company, the Subsidiary
Guarantors and the Trustee may amend or supplement this Indenture and the Notes
with the consent of the Holders of at least a majority in aggregate principal
amount of the Notes, including Additional Notes, if any, then outstanding voting
as a single class (including consents obtained in connection with a tender offer
or exchange offer for the Notes), and, subject to Sections 6.04 and 6.07, any
existing Default or Event of Default or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the Holders of at least
a majority in aggregate principal amount of the Notes, including Additional
Notes, if any, then outstanding voting as a single class (including consents
obtained in connection with a tender offer or exchange offer for the Notes).
(b) Upon the request of the Company accompanied by a Board Resolution
of the Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 9.07, the
Trustee shall join with the Company in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture directly
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental indenture.
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(c) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date, provided that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
(d) It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
(e) After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders to such Holder's address
appearing in the Security Register a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such amended or supplemental indenture or waiver.
(f) Without the consent of each Holder of an outstanding Note under
this Indenture, no amendment, supplement or waiver under this Section 9.02 may:
(i) reduce the amount of Notes whose Holders must consent to
an amendment, supplement or waiver under this Indenture,
(ii) reduce the rate of, or extend the time for payment of,
interest, including Special Interest, if any, on any Note issued under
this Indenture,
(iii) reduce the principal of, or extend the Stated Maturity
of, any Note issued under this Indenture,
(iv) make any Note payable in money other than that stated in
the Note,
(v) impair the right of any Holder of the Notes to receive
payment of principal of, premium, if any, and interest, including
Special Interest, if any, on, such Holder's Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment
on or with respect to such Holder's Notes or any Subsidiary Guaranty,
(vi) release any security interest that may have been granted
in favor of the Holders of the Notes under this Indenture other than
pursuant to the terms of such security interest,
(vii) reduce the premium payable upon the redemption of any
Note or change the time at which any Note may be redeemed pursuant to
Section 3.07,
(viii) reduce the premium payable upon a Change of Control or,
at any time after a Change of Control has occurred, change the time at
which the Change of Control Offer must be made or at which the Notes
must be repurchased pursuant to such Change of Control Offer,
(ix) at any time after the Company is obligated to make an
offer pursuant to Section 4.09 or 4.13, change the time at which such
offer must be made or at which the Notes must be repurchased pursuant
thereto,
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(x) make any change to the subordination provisions of this
Indenture that would adversely affect the Holders of the Notes, or
(xi) make any change in any Subsidiary Guaranty that would
adversely affect in any material respect the holders of the Notes under
this Indenture.
Section 9.03. With Consent of Holders of Senior Debt.
No amendment or supplement may be made to the subordination
provisions of this Indenture that adversely affects the rights of any holder of
Senior Debt then outstanding unless the holders of such Senior Debt (or their
Representative) consents to such change.
Section 9.04. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental indenture that complies with
the TIA as then in effect.
Section 9.05. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder that evidences the same debt as the consenting Holder's Note,
even if notation of the consent is not made on any Note. However, any such
Holder or subsequent Holder may revoke the consent as to its Note if the Trustee
receives written notice of revocation before the date the waiver, supplement or
amendment becomes effective. An amendment, supplement or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
Section 9.06. Notation on or Exchange of Notes.
(a) The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
(b) Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 9.07. Trustee to Sign Amendments, Etc.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be entitled to receive and (subject to Section 7.01) shall be
fully protected in relying upon an Officers' Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
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ARTICLE 10.
SUBSIDIARY GUARANTIES
Section 10.01. Subsidiary Guaranty.
(a) Subject to this Article 10, each of the Subsidiary Guarantors
hereby, jointly and severally, unconditionally Guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes or the obligations of the Company hereunder or thereunder,
that: (a) the principal of, premium, if any, and interest, including Special
Interest, if any, on, the Notes shall be promptly paid in full when due, whether
at maturity, by acceleration, redemption or otherwise, and interest on the
overdue principal of, premium, if any, and interest, including Special Interest,
if any on, the Notes, if lawful, and all other Obligations of the Company to the
Holders or the Trustee hereunder or thereunder shall be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
Obligations, that same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration or otherwise. Failing payment when due of any amount
so Guaranteed or any performance so Guaranteed for whatever reason, the
Subsidiary Guarantors shall be jointly and severally obligated to pay the same
immediately. Each Subsidiary Guarantor agrees that this is a guarantee of
payment and not a guarantee of collection.
(b) Each Subsidiary Guarantor hereby agrees that its Obligations with
regard to this Subsidiary Guaranty shall be absolute and unconditional,
irrespective of the validity or enforceability of the Notes or the Obligations
of the Company under this Indenture, the absence of any action to enforce the
same, any waiver, modification or indulgence granted to the Company with respect
to the same by the Holders or the Trustee, the recovery of any judgment against
the Company or any other obligor with respect to this Indenture, the Notes or
the Obligations of the Company under this Indenture or the Notes, any action to
enforce the same or any other circumstances (other than complete performance)
which might otherwise constitute a legal or equitable discharge or defense of a
Subsidiary Guarantor. Each Subsidiary Guarantor further, to the extent permitted
by law, waives and relinquishes all claims, rights and remedies accorded by
applicable law to guarantors and agrees not to assert or take advantage of any
such claims, rights or remedies, including but not limited to: (i) any right to
require any of the Trustee, the Holders or the Company (each a "Benefited
Party"), as a condition of payment or performance by such Subsidiary Guarantor,
to (1) proceed against the Company, any other guarantor (including any other
Subsidiary Guarantor) of the Obligations under the Subsidiary Guaranties or any
other Person, (2) proceed against or exhaust any security held from the Company,
any such other guarantor or any other Person, (3) proceed against or have resort
to any balance of any deposit account or credit on the books of any Benefited
Party in favor of the Company or any other Person, or (4) pursue any other
remedy in the power of any Benefited Party whatsoever; (ii) any defense arising
by reason of the incapacity, lack of authority or any disability or other
defense of the Company including any defense based on or arising out of the lack
of validity or the unenforceability of the Obligations under the Subsidiary
Guaranties or any agreement or instrument relating thereto or by reason of the
cessation of the liability of the Company from any cause other than payment in
full of the Obligations under the Subsidiary Guaranties; (iii) any defense based
upon any statute or rule of law which provides that the Obligation of a surety
must be neither larger in amount nor in other respects more burdensome than that
of the principal; (iv) any defense based upon any Benefited Party's errors or
omissions in the administration of the Obligations under the Subsidiary
Guaranties, except behavior which amounts to bad faith; (v)(1) any principles or
provisions of law, statutory or otherwise, which are or might be in conflict
with the terms of the Subsidiary Guaranties and any legal or equitable discharge
of such Subsidiary Guarantor's Obligations hereunder, (2) the benefit of any
statute of
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limitations affecting such Subsidiary Guarantor's liability hereunder or the
enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims
and (4) promptness, diligence and any requirement that any Benefited Party
protect, secure, perfect or insure any security interest or Lien on any Property
subject thereto; (vi) notices, demands, presentations, protests, notices of
protest, notices of dishonor and notices of any action or inaction, including
acceptance of the Subsidiary Guaranties, notices of default under the Notes or
any agreement or instrument related thereto, notices of any renewal, extension
or modification of the Obligations under the Subsidiary Guaranties or any
agreement related thereto, and notices of any extension of credit to the Company
and any right to consent to any thereof; (vii) to the extent permitted under
applicable law, the benefits of any "One Action" rule; and (viii) any defenses
or benefits that may be derived from or afforded by law which limit the
liability of or exonerate guarantors or sureties, or which may conflict with the
terms of the Subsidiary Guaranties. Each Subsidiary Guarantor hereby covenants
that its Subsidiary Guaranty shall not be discharged except as provided in
Section 10.05 or by complete performance of the Obligations contained in its
Subsidiary Guaranty and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Subsidiary Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Subsidiary Guarantors, any amount paid either to the Trustee or such Holder,
this Subsidiary Guaranty, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(d) Each Subsidiary Guarantor agrees that it shall not be entitled to
any right of subrogation in relation to the Holders in respect of any
Obligations Guaranteed hereby until payment in full of all Obligations
Guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the
Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the
other hand, (i) the maturity of the Obligations Guaranteed hereby may be
accelerated as provided in Article 6 for the purposes of this Subsidiary
Guaranty, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Obligations Guaranteed hereby and (ii) in
the event of any declaration of acceleration of such Obligations as provided in
Article 6, such Obligations (whether or not due and payable) shall forthwith
become due and payable by such Subsidiary Guarantor for the purpose of this
Subsidiary Guaranty. Each Subsidiary Guarantor that makes a payment or
distribution under a Subsidiary Guaranty shall be entitled to a contribution
from each other Subsidiary Guarantor and the Company in a pro rata amount based
on the proportion that the net worth of the Company or the relevant Subsidiary
Guarantor represents relative to the aggregate net worth of the Company and all
of the Subsidiary Guarantors combined.
Section 10.02. Limitation on Subsidiary Guarantor Liability.
Each Subsidiary Guarantor, and by its acceptance of Notes,
each Holder, hereby confirms that it is the intention of all such parties that
the Subsidiary Guaranty of such Subsidiary Guarantor not constitute a fraudulent
transfer or conveyance for purposes of any Federal or state law to the extent
applicable to any Subsidiary Guaranty. To effectuate the foregoing intention,
the Trustee, the Holders and the Subsidiary Guarantors hereby irrevocably agree
that the Obligations of such Subsidiary Guarantor under this Article 10 shall be
limited to the maximum amount as shall, after giving effect to such maximum
amount and all other contingent and fixed liabilities of such Subsidiary
Guarantor that are relevant under such laws, including, if applicable, its
Guarantee of all Obligations under the Senior Credit Facility, and after giving
effect to any collections from, rights to receive contribution from or payments
made by or on behalf of any other Subsidiary Guarantor in respect of the
Obligations of such other Subsidiary Guarantor under this Article 10, result in
the Obligations of such Subsidiary Guarantor under its Subsidiary Guaranty not
constituting a fraudulent transfer or conveyance under Federal or state law.
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Section 10.03. Execution and Delivery Of Subsidiary Guaranty.
(a) To evidence its Subsidiary Guaranty set forth in this Article 10,
each Subsidiary Guarantor hereby agrees that a notation of such Subsidiary
Guaranty in substantially the form included in Exhibit E shall be endorsed by
the manual or facsimile signature of an Officer of such Subsidiary Guarantor on
each Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Subsidiary Guarantor by the manual or
facsimile signature of an Officer of the Subsidiary Guarantor.
(b) Each Subsidiary Guarantor hereby agrees that its Subsidiary
Guaranty set forth in Section 10.01 hereof shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guaranty.
(c) If an Officer whose signature is on this Indenture or on the
notation of Subsidiary Guaranty no longer holds that office at the time the
Trustee authenticates the Note on which a notation of Subsidiary Guaranty is
endorsed, the Subsidiary Guaranty shall be valid nevertheless.
(d) The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guaranty set
forth in this Indenture on behalf of each Subsidiary Guarantor.
Section 10.04. Additional Subsidiary Guarantors.
The Company covenants and agrees that it will cause any Person
which becomes obligated to Guarantee the Notes pursuant to the terms of Section
4.18 hereof to execute a supplemental indenture, substantially in the form of
Exhibit F hereto, pursuant to which such Subsidiary Guarantor shall Guarantee
the Obligations of the Company under the Notes and this Indenture in accordance
with this Article 10 with the same effect and to the same extent as if such
Person had been named herein as a Subsidiary Guarantor.
Section 10.05. Release of Subsidiary Guarantor.
A Subsidiary Guarantor shall be released from all of its
Obligations under its Subsidiary Guaranty and this Indenture if:
(a) the Company or such Subsidiary Guarantor has sold all or
substantially all of the assets of such Subsidiary Guarantor; or
(b) the Company and its Restricted Subsidiaries have sold all of the
Capital Stock of the Subsidiary Guarantor owned by them, in each case in a
transaction in compliance with Sections 4.13 or 5.01(b) (as applicable); and in
each such case, the Subsidiary Guarantor has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to such transactions have been
complied with.
Notwithstanding the foregoing, upon designation of a
Restricted Subsidiary as an Unrestricted Subsidiary in compliance with Section
4.16, such Restricted Subsidiary shall, by execution and delivery of a
supplemental indenture, substantially in the form of Exhibit F hereto, be
released from any Subsidiary Guaranty previously made by such Restricted
Subsidiary and its obligations under this Indenture.
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ARTICLE 11.
SUBORDINATION
Section 11.01. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Note
agrees, that the payment of principal of, premium, if any, and interest,
including Special Interest, if any, on, and all other amounts payable in respect
of, the Notes is subordinated in right of payment, to the extent and in the
manner provided in this Article 11, to the payment when due in cash of all
Senior Debt of the Company and that the subordination is for the benefit of and
enforceable by the holders of such Senior Debt. The Notes shall in all respects
rank pari passu with any future Senior Subordinated Debt and senior to all
existing and future Subordinated Debt of the Company, and only Senior Debt shall
rank senior to the Notes in accordance with the provisions set forth herein. All
provisions of this Article 11 shall be subject to Section 11.12. All references
to "Senior Debt" in this Article 11 are to Senior Debt of the Company.
Section 11.02. Liquidation, Dissolution, Bankruptcy.
(a) Upon any payment or distribution of the assets of the Company to
creditors upon a liquidation, dissolution or winding up of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its Property or upon an assignment for the benefit of
the Company's creditors or the marshaling of its asset and liabilities, the
holders of Senior Debt will be entitled to receive payment in full in cash
before the Holders of the Notes are entitled to receive any payment of principal
of, premium, if any, or interest, including Special Interest, if any, on, the
Notes, except that Holders of Notes may receive and retain Permitted Junior
Securities; and
(b) Until the Senior Debt is paid in full in cash, any distribution to
which Holders of the Notes would be entitled but for this Article 11 will be
made to holders of the Senior Debt as their interests may appear.
Section 11.03. Default on Senior Debt.
The Company may not pay principal of, or premium, if any, or
interest, including Special Interest, if any, on, the Notes, or make any deposit
pursuant to Section 8.04, and may not repurchase, redeem or otherwise retire any
Notes (collectively, "pay the Notes") if (a) any principal, premium, interest or
any other amount payable in respect of any Senior Debt is not paid within any
applicable grace period (including at maturity) or (b) any other default on
Senior Debt occurs and the maturity of such Senior Debt is accelerated in
accordance with its terms unless, in either case, (1) the default has been cured
or waived and any such acceleration has been rescinded or (2) such Senior Debt
has been paid in full in cash; provided, however, that the Company may pay the
Notes without regard to the foregoing if the Company and the Trustee receive
written notice approving such payment from the Representative of such issue of
Senior Debt. During the continuance of any default (other than a default
described in clause (a) or (b) of the preceding sentence) with respect to any
Designated Senior Debt pursuant to which the maturity thereof may be accelerated
immediately without further notice (except any notice required to effect the
acceleration) or the expiration of any applicable grace period, the Company may
not pay the Notes for a period (a "Payment Blockage Period") commencing upon the
receipt by the Company and the Trustee of written notice of such default from
the Representative of the holders of such Designated Senior Debt specifying an
election to effect a Payment Blockage Period (a "Payment Blockage Notice") and
ending 179 days thereafter (unless such Payment Blockage Notice is earlier
terminated (a) by written notice to the Trustee and the Company from the
Representative that gave such Payment Blockage Notice, (b) be-
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cause such default is no longer continuing or (c) because such Designated Senior
Debt has been repaid in full in cash). Unless the holders of such Designated
Senior Debt or the Representative of such holders have accelerated the maturity
of such Designated Senior Debt and not rescinded such acceleration, the Company
may (unless otherwise prohibited as described in the first two sentences of this
paragraph) resume payments on the Notes after the end of such Payment Blockage
Period. Not more than one Payment Blockage Notice with respect to all issues of
Designated Senior Debt may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to one or more issues of
Designated Senior Debt during such period.
Section 11.04. Acceleration of Payment of Securities.
If payment of the Notes is accelerated when Designated Senior
Debt is outstanding, the Company may not pay the Notes until three Business Days
after the Representatives of all issues of Designated Senior Debt receive notice
of such acceleration and, thereafter, may pay the Notes only if this Indenture
otherwise permits payment at that time.
Section 11.05. When Distribution Must be Paid Over.
If a payment or distribution is made to holders that because
of this Article 11 should not have been made to them, the Trustee or the holders
who receive the distribution shall hold it in trust for holders of Senior Debt
and pay it over to them as their interests may appear.
Section 11.06. Subrogation.
After all Senior Debt is paid in full and until the Notes are
paid in full, Holders shall be subrogated to the rights of holders of Senior
Debt to receive distributions applicable to Senior Debt. A distribution made
under this Article 11 to holders of Senior Debt that otherwise would have been
made to Holders is not, as between the Company and Holders, a payment by the
Company on such Senior Debt.
Section 11.07. Relative Rights.
This Article 11 defines the relative rights of Holders and
holders of Senior Debt. Nothing in this Indenture shall:
(a) impair, as between the Company and Holders, the obligation of the
Company, which is absolute and unconditional, to pay principal of, premium, if
any, and interest, including Special Interest, if any, on, the Notes in
accordance with their terms; or
(b) prevent the Trustee or any Holder from exercising its available
remedies upon an Event of Default, subject to the rights of holders of Senior
Debt to receive distributions otherwise payable to Holders.
Section 11.08. Subordination May Not be Impaired by Company.
No right of any holder of Senior Debt to enforce the
subordination of the Debt evidenced by the Notes shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
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Section 11.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 11.03, the Trustee or Paying Agent may
continue to make payments on the Notes and shall not be charged with knowledge
of the existence of facts that would prohibit the making of any such payments
unless, not less than two Business Days prior to the date of such payment, a
Responsible Officer receives notice satisfactory to it that payments may not be
made under this Article 11. The Company, the Registrar or co-registrar, the
Paying Agent, a Representative or a holder of Senior Debt may give the notice;
provided, however, that, if an issue of Senior Debt has a Representative, only
the Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. The
Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article 11 with respect to any Senior Debt that may at any time be held by it,
to the same extent as any other holder of such Senior Debt; and nothing in
Article 7 shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article 11 shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 7.07.
Section 11.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the notice given to
their Representative (if any).
Section 11.11. Article 11 Not to Prevent Events of Default or Limit
Right to Accelerate.
Nothing in this Article 11 shall prevent an Event of Default
in accordance with Article 6 or have any effect on the right of the Holders or
the Trustee to accelerate the maturity of the Notes or to exercise the rights
and remedies in Article 6.
Section 11.12. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary,
payments from money or the proceeds of U.S. Government Obligations held in trust
under Article 8 by the Trustee for the payment of principal of and interest on
the Notes shall not be subordinated to the prior payment of any Senior Debt or
subject to the restrictions set forth in this Article 11, and none of the
Holders shall be obligated to pay over any such amount to the Company or any
holder of Senior Debt or any other creditor of the Company.
Section 11.13. Trustee Entitled to Rely.
Upon any payment or distribution pursuant to this Article 11,
the Trustee and the Holders shall be entitled to rely (a) upon any order or
decree of a court of competent jurisdiction in which any proceedings of the
nature referred to in Section 11.02 are pending, (b) upon a certificate of the
liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to the Holders or (c) upon the Representative for the holders
of Senior Debt for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior Debt and
other Debt of the Company, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article 11. In the event that the Trustee determines, in good faith, that
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article 11, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior Debt held
by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and
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other facts pertinent to the rights of such Person under this Article 11, and,
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment. The provisions of Sections 7.01 and 7.02 shall be applicable to
all actions or omissions of actions by the Trustee pursuant to this Article 11.
Section 11.14. Trustee to Effectuate Subordination.
Each Holder by accepting a Note authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Holders and the holders
of Senior Debt as provided in this Article 11 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
Section 11.15. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt and shall be liable to any such holders if it shall
mistakenly pay over or distribute to Holders or the Company or any other Person,
money or assets to which any holders of Senior Debt shall be entitled by virtue
of this Article 11 or otherwise.
Section 11.16. Reliance by Holders of Senior Debt on Subordination
Provisions.
Each Holder by accepting a Note acknowledges and agrees that
the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Debt, whether such
Senior Debt was created or acquired before or after the issuance of the Note, to
acquire and continue to hold, or to continue to hold, such Senior Debt and such
holder of such Senior Debt shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Debt.
ARTICLE 12.
SUBORDINATION OF SUBSIDIARY GUARANTEES
Section 12.01. Agreement to Subordinate.
Each Subsidiary Guarantor agrees, and each Holder by accepting
a Note agrees, that the Obligations of such Subsidiary Guarantor are
subordinated in right of payment, to the extent and in the manner provided in
this Article 12, to the payment when due in cash of all Senior Debt of such
Subsidiary Guarantor and that the subordination is for the benefit of and
enforceable by the holders of such Senior Debt. The Obligations of a Subsidiary
Guarantor shall in all respects rank pari passu with any future Senior
Subordinated Debt of such Subsidiary Guarantor and senior to all existing and
future Subordinated Debt of such Subsidiary Guarantor, and only Senior Debt
shall rank senior to the Obligations of such Subsidiary Guarantor in accordance
with the provisions set forth herein. All references to "Obligations" in this
Article 12 are to Obligations of the Subsidiary Guarantors under the Subsidiary
Guaranties.
Section 12.02. Liquidation, Dissolution, Bankruptcy.
(a) Upon any payment or distribution of the assets of any Subsidiary
Guarantor to creditors upon a liquidation, dissolution or winding up of such
Subsidiary Guarantor or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Subsidiary Guarantor or its
Prop-
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erty or upon an assignment for the benefit of the Subsidiary Guarantor's
creditors or the marshaling of its asset and liabilities, holders of Senior Debt
of such Subsidiary Guarantor shall be entitled to receive payment in full in
cash of such Senior Debt before Holders shall be entitled to receive any payment
pursuant to any Obligations of such Subsidiary Guarantor.
(b) Until the Senior Debt of any Subsidiary Guarantor is paid in full
in cash, any distribution made by or on behalf of such Subsidiary Guarantor to
which Holders would be entitled but for this Article 12 shall be made to holders
of the Senior Debt as their interests may appear.
Section 12.03. Default on Senior Debt of Subsidiary Guarantor.
No Subsidiary Guarantor may make any payment pursuant to any
of its Obligations or repurchase, redeem or otherwise retire or defease any
Notes or other Obligations (collectively, "pay its Subsidiary Guaranty") if (a)
any principal, premium, interest or other amount payable in respect of any
Senior Debt of such Subsidiary Guarantor is not paid within any applicable grace
period (including at maturity) or (b) any other default on Senior Debt of such
Subsidiary Guarantor occurs and the maturity of such Senior Debt is accelerated
in accordance with its terms unless, in either case, (i) the default has been
cured or waived and any such acceleration has been rescinded or (ii) such Senior
Debt has been paid in full in cash; provided, however, that any Subsidiary
Guarantor may pay its Subsidiary Guaranty without regard to the foregoing if
such Subsidiary Guarantor and the Trustee receive written notice approving such
payment from the Representative of such issue of Senior Debt of such Subsidiary
Guarantor. No Subsidiary Guarantor may pay its Subsidiary Guaranty during the
continuance of any Payment Blockage Period after receipt by the Company and the
Trustee of a Payment Blockage Notice under Section 11.03. Unless the holders of
Designated Senior Debt giving such Payment Blockage Notice or the Representative
of such holders shall have accelerated the maturity of such Designated Senior
Debt and not rescinded such acceleration, any Subsidiary Guarantor may resume
(unless otherwise prohibited as described in the first two sentences of this
paragraph) resume payments pursuant to its Subsidiary Guaranty after the end of
such Payment Blockage Period.
Section 12.04. Demand for Payment.
If a demand for payment is made on a Subsidiary Guarantor
pursuant to Article 10, such Subsidiary Guarantor may not pay its Subsidiary
Guaranty until three Business Days after the Representatives of all issues of
Designated Senior Debt receive notice of such demand and, thereafter, may pay
its Subsidiary Guaranty only if this Indenture otherwise permits payment at that
time.
Section 12.05. When Distribution Must be Paid Over.
If a payment or distribution is made to holders that because
of this Article 12 should not have been made to them, the Trustee or the Holders
who receive the distribution shall hold it in trust for holders of the relevant
Senior Debt and pay it over to them or their Representatives as their interests
may appear.
Section 12.06. Subrogation.
After all Senior Debt of a Subsidiary Guarantor is paid in
full and until the Notes are paid in full, Holders shall be subrogated to the
rights of holders of Senior Debt to receive distributions applicable to Senior
Debt. A distribution made under this Article 12 to holders of such Senior Debt
that otherwise would have been made to Holders is not, as between the relevant
Subsidiary Guarantor and Holders, a payment by such Subsidiary Guarantor on such
Senior Debt.
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Section 12.07. Relative Rights.
This Article 12 defines the relative rights of Holders and
holders of Senior Debt of a Subsidiary Guarantor. Nothing in this Indenture
shall:
(a) impair, as between a Subsidiary Guarantor and Holders, the
obligation of such Subsidiary Guarantor, which is absolute and unconditional, to
pay the Obligations to the extent set forth in Article 10; or
(b) prevent the Trustee or any Holder from exercising its available
remedies upon a default by such Subsidiary Guarantor under the Obligations,
subject to the rights of holders of Senior Debt of such Subsidiary Guarantor to
receive distributions otherwise payable to Holders.
Section 12.08. Subordination May Not be Impaired by Subsidiary
Guarantor.
No right of any holder of Senior Debt of any Subsidiary
Guarantor to enforce the subordination of the Obligation of such Subsidiary
Guarantor shall be impaired by any act or failure to act by such Subsidiary
Guarantor or by its failure to comply with this Indenture.
Section 12.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 12.03, the Trustee or Paying Agent may
continue to make payments on any Subsidiary Guaranty and shall not be charged
with knowledge of the existence of facts that would prohibit the making of any
such payments unless, not less than two Business Days prior to the date of such
payment, a Trust Officer receives written notice satisfactory to it that
payments may not be made under this Article 12. The Company, the relevant
Subsidiary Guarantor, the Registrar or co-registrar, the Paying Agent, a
Representative or a holder of Senior Debt of any Subsidiary Guarantor may give
the notice; provided, however, that, if an issue of Senior Debt of any
Subsidiary Guarantor has a Representative, only the Representative may give the
notice.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. The
Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article 12 with respect to any Senior Debt of any Subsidiary Guarantor that may
at any time be held by it, to the same extent as any other holder of Senior
Debt; and nothing in Article 7 shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article 12 shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 7.07.
Section 12.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to
holders of Senior Debt of any Subsidiary Guarantor, the distribution may be made
and the notice given to their Representative (if any).
Section 12.11. Article 12 Not to Prevent Events of Default Under a
Subsidiary Guaranty or Limit Right to Demand Payment.
Nothing in this Article 12 shall prevent a default under any
Subsidiary Guaranty or have any effect on the right of the Holders or the
Trustee to make a demand for payment on any Subsidiary Guarantor pursuant to
Article 10.
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Section 12.12. Trustee Entitled To Rely.
Upon any payment or distribution pursuant to this Article 12,
the Trustee and the Holders shall be entitled to rely (i) upon any order or
decree of a court of competent jurisdiction in which any proceedings of the
nature referred to in Section 12.02 are pending, (ii) upon a certificate of the
liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to the Holders or (iii) upon the Representatives for the
holders of Senior Debt of any Subsidiary Guarantor for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Debt and other Debt of such Subsidiary
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 12.
In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior Debt of
any Subsidiary Guarantor to participate in any payment or distribution pursuant
to this Article 12, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior Debt of
such Subsidiary Guarantor held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and other facts
pertinent to the rights of such Person under this Article 12, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article 12.
Section 12.13. Trustee to Effectuate Subordination.
Each Holder by accepting a Note authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Holders and the holders
of Senior Debt of any Subsidiary Guarantor as provided in this Article 12 and
appoints the Trustee as attorney-in-fact for any and all such purposes.
Section 12.14. Trustee Not Fiduciary For Holders of Senior Debt of
Subsidiary Guarantor.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt of any Subsidiary Guarantor and shall not be liable
to any such holders if it shall mistakenly pay over or distribute to Holders or
the Company or any other Person, money or assets to which any holders of such
Senior Debt shall be entitled by virtue of this Article 12 or otherwise.
Section 12.15. Reliance by Holders of Senior Debt of a Subsidiary
Guarantor on Subordination Provisions.
Each Holder by accepting a Note acknowledges and agrees that
the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Debt of any
Subsidiary Guarantor, whether such Senior Debt was created or acquired before or
after the issuance of the Note, to acquire and continue to hold, or to continue
to hold, such Senior Debt and such holder of Senior Debt shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Debt.
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ARTICLE 13.
SATISFACTION AND DISCHARGE
Section 13.01. Satisfaction and Discharge.
(a) This Indenture will be discharged and will cease to be of further
effect as to all Notes issued hereunder (except as to surviving rights of
registration of transfer or exchange of Notes expressly provided for herein, the
Company's obligations under Section 7.07, and the Trustee's and each Paying
Agent's obligations under Sections 13.02 and 13.03), when:
(i) either:
(1) all Notes that have been authenticated (except
lost, stolen or destroyed Notes that have been replaced or
paid and Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company) have
been delivered to the Trustee for cancellation; or
(2) all Notes that have not been delivered to the
Trustee for cancellation have become due and payable by reason
of the making of a notice of redemption or otherwise or will
become due and payable within one year and the Company has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust solely for the benefit of the
Holders, money or U.S. Government Obligations, or a
combination thereof, in such amounts as will be sufficient
without consideration of any reinvestment of interest, to pay
and discharge the entire indebtedness on the Notes not
delivered to the Trustee for cancellation for principal,
premium, if any, and accrued interest, including Special
Interest, if any, to the date of maturity or redemption;
(ii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of
such deposit and such deposit will not result in a breach or violation
of, or constitute a default under, any other instrument to which the
Company is a party or by which the Company is bound;
(iii) the Company has paid or caused to be paid all sums
payable by it under this Indenture; and
(iv) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money and/or U.S.
Government Obligations toward the payment of the Notes at maturity or
the redemption date, as the case may be.
(b) The Company shall deliver an Officers' Certificate and an Opinion
of Counsel to the Trustee stating that all conditions precedent to satisfaction
and discharge have been satisfied.
Section 13.02. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 13.03, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 13.02, the
"Trustee") pursuant to Section 13.01 in respect of the outstanding Notes shall
be held in trust and applied by the Trustee, in accordance with the provisions
of such Notes and this Indenture, to
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the payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest and Special Interest, if any, but such money need
not be segregated from other funds except to the extent required by law.
Section 13.03. Repayment to Company.
Subject to applicable escheat and abandoned property laws, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest, including Special Interest, if any, on, any Note and remaining
unclaimed for two years after such principal, and premium, if any, or interest
has become due and payable shall be paid to the Company on its request or (if
then held by the Company) shall be discharged from such trust; and the Holder
shall thereafter look only to the Company for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in The New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such notification
or publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
ARTICLE 14.
MISCELLANEOUS
Section 14.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
Section 14.02. Notices.
(a) Any notice or communication by the Company, the Subsidiary
Guarantors or the Trustee to the others is duly given if in writing (in the
English language) and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telecopier or overnight air
courier guaranteeing next-day delivery, to the other's address:
If to the Company or the Subsidiary Guarantors:
Technical Olympic USA, Inc.
0000 Xxxxxxxxx Xxxx.
Xxxxx 000-X
Xxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopier No.: 000-000-0000
With a copy to:
-00-
Xxxxxxx Xxxxxxxxxx
Xxx Xxxxxxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxx XxxXxxxxxxx, Esq.
Telecopier No.: 305-374-5095
If to the Trustee:
Xxxxx Fargo Bank, National Association
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Services
Telecopier No.: 000-000-0000
(b) The Company, the Subsidiary Guarantors or the Trustee, by notice to
the others, may designate additional or different addresses for subsequent
notices or communications.
(c) All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next-day delivery. Notwithstanding the foregoing, notices
to the Trustee shall be effective only upon receipt by the Trustee.
(d) Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next-day delivery to its address shown on the Security
Register. Any notice or communication shall also be so mailed to any Person
described in TIA Section 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.
(e) If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
(f) If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 14.03. Communication by Holders of Notes with Other Holders of
Notes.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
Section 14.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 14.05) stating that, in the opinion of the signers,
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all conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 14.05)
stating that, in the opinion of such counsel, all such conditions precedent and
covenants have been complied with.
Section 14.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
such Person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 14.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 14.07. No Personal Liability of Directors, Officers, Employees
and Stockholders.
No past, present or future director, officer, employee,
incorporator, member, partner or stockholder of the Company or any Subsidiary
Guarantor as such, shall have any liability for any Obligations of the Company
or any Subsidiary Guarantor under the Notes, this Indenture or for any claim
based on, in respect of, or by reason of, such Obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
Section 14.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE AND THE NOTES.
Section 14.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
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Section 14.10. Successors.
All covenants and agreements of the Company and the Subsidiary
Guarantors in this Indenture and the Notes shall bind their successors. All
covenants and agreements of the Trustee in this Indenture shall bind its
successors.
Section 14.11. Severability.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 14.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 14.13. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings in
this Indenture have been inserted for convenience of reference only, are not to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
[Signatures on following pages]
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SIGNATURES
Dated as of March 17, 2004
ISSUER:
TECHNICAL OLYMPIC USA, INC.
By: /s/ XXXXX X. XXXXXX
---------------------------------------
Name: Xxxxx X. XxXxxx
Title: Vice President -- Finance and
Administration and Chief Financial
Officer
SUBSIDIARY GUARANTORS:
DP-NH Investments, LP
DP-NH Management, LLC
Xxxxx Homes Delaware, Inc.
Newmark Homes, XX
Xxxxxxx Homes Purchasing, LP
Pacific United, LP
Silver Oak Trails, LP
Silverlake Interests, LC
TOI, LLC
TOUSA Financing, Inc.
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. XxXxxx
Title: Vice President - Finance and
Administration
TOUSA Associates Services Company
By: /s/ XXXXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President and Secretary
S-1
Newmark Homes Business Trust
By: /s/ XXXXX XXXXXX
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Trustee
Alliance Insurance and Information Services, LLC
Xxxxx Homes Residential Construction, LLC
Xxxxx/Xxxxx, LLC
XxXxx Landing, LLC
Newmark Homes, LLC
Preferred Builders Realty, Inc.
Preferred Home Mortgage Company
Prestige Abstract & Title, LLC
Professional Advantage Title, Ltd.
The Century Title Agency, Inc.
TOUSA Delaware, Inc.
TOUSA Homes, Inc.
TOUSA Ventures, LLC
Universal Land Title, Inc.
Universal Land Title Investment #1, LLC
Universal Land Title Investment #2, LLC
Universal Land Title Investment #3, LLC
Universal Land Title Investment #4, LLC
Universal Land Title of South Florida, Ltd.
Universal Land Title of Texas, Inc.
Universal Land Title of The Palm Beaches, Ltd.
By: /s/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. XxXxxx
Title: Vice President and Treasurer
TRUSTEE:
XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
S-2
EXHIBIT A
(FACE OF NOTE)
7 1/2% SENIOR SUBORDINATED NOTE DUE 2011
CUSIP ________
NO. _____ $____________
TECHNICAL OLYMPIC USA, INC. promises to pay to _____________
or registered assigns, the principal sum of _________________ Dollars
($______________) on March 15, 2011.
Interest Payment Dates: March 15 and September 15, commencing September 15,
2004.
Record Dates: March 1 and September 1.
IN WITNESS WHEREOF, the Issuer has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
TECHNICAL OLYMPIC USA, INC.
By: _________________________________________
Name:
Title:
By: _________________________________________
Name:
Title:
This is one of the Global Notes referred to in the within-mentioned Indenture:
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Trustee
By _____________________________________
Authorized Signatory
Dated _____________
A-1
(BACK OF NOTE)
7 1/2% SENIOR SUBORDINATED NOTE DUE 2011
[THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT
AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)(1),(2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "IAI");
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF
REGULATION S UNDER THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2) (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY, IF THE COMPANY SO REQUESTS, THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY, IF THE COMPANY SO REQUESTS) OR (G) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE GOVERNING THIS SECURITY CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING.]
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[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11
OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Technical Olympic USA, Inc., a Delaware
corporation (the "Issuer"), promises to pay interest on the principal amount of
this Note at 7 1/2% per annum until maturity and shall pay Special Interest, if
any, as provided in Section 4 of the Registration Rights Agreement. The Issuer
shall pay interest semi-annually on March 15 and September 15 of each year, or
if any such day is not a Business Day, on the next succeeding Business Day (each
an "Interest Payment Date"). Interest on the Notes shall accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; provided, however, that if there is no existing
Default in the payment of interest, and if this Note is authenticated between a
record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment
Date; provided, further, that the first Interest Payment Date shall be September
15, 2004. The Issuer shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at a rate that is 1% per annum in excess of the rate
then in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest shall be computed on the basis of a
360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Issuer shall pay interest on the
Notes to the Holders at the close of business on the March 1 or September 1 next
preceding the Interest Payment Date, even if such Notes are cancelled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes
shall be payable as
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to principal, premium, if any, and interest and Special Interest, if any, at the
office or agency of the Issuer maintained for such purpose within or without the
City and State of New York, or, at the option of the Issuer, payment of interest
may be made by check mailed to the Holders at their addresses set forth in the
Security Register; provided, however, that payment by wire transfer of
immediately available funds shall be required with respect to principal of, and
interest and Special Interest, if any, and premium, if any, on, all Global Notes
and all other Notes the Holders of which shall have provided wire transfer
instructions to the Issuer or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. The principal of the Notes
shall be payable only upon surrender of any Note at the Corporate Trust Office
of the Trustee or at the specified offices of any other Paying Agent. If any
Interest Payment Date for, or the due date for payment of the principal of, the
Notes is not a Business Day at the place in which it is presented for payment,
the Holder thereof shall not be entitled to payment of the amount due until the
next succeeding Business Day at such place and shall not be entitled to any
further interest or other payment in respect of such delay.
3. PAYING AGENT AND REGISTRAR. Initially, Xxxxx Fargo Bank,
National Association, the Trustee under the Indenture, shall act as Paying Agent
and Registrar. The Issuer may change any Paying Agent or Registrar without
notice to any Holder. The Issuer or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Issuer issued the Notes under an Indenture
dated as of March 17, 2004 ("Indenture") among the Issuer, the guarantors party
thereto (the "Subsidiary Guarantors") and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections
77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred
to the Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The Notes are
obligations of the Issuer unlimited in aggregate principal amount, except only
$125,000,000 in aggregate principal amount of the Notes may be issued on the
Issue Date.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in clauses (b) and (c) of this Section
5, the Notes will not be redeemable at the option of the Issuer prior to March
15, 2008. Starting on that date, the Issuer may redeem all or any portion of the
Notes, at once or over time, after giving the required notice under the
Indenture. The Notes may be redeemed at the redemption prices set forth below,
plus accrued and unpaid interest, including Special Interest, if any, to the
redemption date (subject to the right of Holders on the relevant record date to
receive interest due on the relevant Interest Payment Date). The following
prices are for Notes redeemed during the 12-month period commencing on March 15
of the years set forth below, and are expressed as percentages of principal
amount:
YEAR REDEMPTION PRICE
-------------------- ----------------
2008 103.750%
2009 101.875%
2010 and thereafter 100.000%
(b) At any time prior to March 15, 2008, the Issuer may,
subject to the terms of the Senior Notes Indenture and its other Senior Debt,
redeem all or any portion of the Notes, at once or over time, after giving the
required notice under the Indenture at a redemption price equal to the greater
of:
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(i) 100% of the principal amount of the Notes to be redeemed,
and
(ii) the sum of the present values of (1) the redemption price
of the Notes at March 15, 2008 (as set forth in clause (a) of this
Section 5) and (2) the remaining scheduled payments of interest from
the redemption date to March 15, 2008, but excluding accrued and unpaid
interest to the redemption date, discounted to the redemption date at
the Treasury Rate plus 50 basis points,
plus, in either case, accrued and unpaid interest, including Special Interest,
if any, to the redemption date (subject to the right of Holders on the relevant
record date to receive interest due on the relevant Interest Payment Date).
Any notice to Holders of a redemption pursuant to this clause
(b) shall include the appropriate calculation of the redemption price, but need
not include the redemption price itself. The actual redemption price, calculated
as described in this clause (b), shall be set forth in an Officers' Certificate
delivered to the Trustee no later than two Business Days prior to the redemption
date (unless clause (2) of the definition of "Comparable Treasury Price" is
applicable, in which case, such Officers' Certificate will be delivered on the
redemption date).
(c) At any time and from time to time prior to March 15, 2007,
the Issuer may redeem up to a maximum of 35% of the aggregate principal amount
of the Notes (including any Additional Notes) that have been issued under the
Indenture on or after the Issue Date with the proceeds of one or more Equity
Offerings, at a redemption price equal to 107.50% of the principal amount
thereof, plus accrued and unpaid interest, including Special Interest, if any,
to the redemption date (subject to the right of Holders on the relevant record
date to receive interest due on the relevant Interest Payment Date); provided,
however, that after giving effect to any such redemption, at least 65% of the
aggregate principal amount of the Notes (including any Additional Notes) that
have been issued under the Indenture on or after the Issue Date remains
outstanding. Any such redemption shall be made within 75 days of such Equity
Offering upon not less than 30 nor more than 60 days' prior notice.
(d) Any prepayment pursuant to this Section 5 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION. The Issuer shall not be required to
make mandatory redemption or sinking fund payments with respect to the Notes.
7. NOTICE OF REDEMPTION. Notice of redemption shall be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Issuer may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. The Issuer need not exchange or
register the transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part. Also, the
Issuer need not exchange or register the transfer of any Notes for a period of
15 days before a selection of Notes to be redeemed or during the period between
a record date and the corresponding Interest Payment Date.
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9. PERSONS DEEMED OWNERS. The registered holder of a Note may
be treated as its owner for all purposes.
10. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of
the then outstanding Notes voting as a single class, and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Holders of at least a majority in aggregate principal amount
of the then outstanding Notes voting as a single class. Without the consent of
any Holder, the Indenture or the Notes may be amended or supplemented to: cure
any ambiguity, omission, defect or inconsistency; provide for the assumption by
a Surviving Person of the obligations of the Issuer under the Indenture or of a
Subsidiary Guarantor under the Indenture or its Subsidiary Guaranty; provide for
uncertificated Notes in addition to or in place of certificated Notes (provided
that the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code, or in a manner such that the uncertificated Notes
are described in Section 163(f)(2)(B) of the Code); add additional Guarantees
with respect to the Notes or to release Subsidiary Guarantors from Subsidiary
Guaranties as provided by the terms of the Indenture; secure the Notes, add to
the covenants of the Issuer for the benefit of the Holders of the Notes or
surrender any right or power conferred upon the Issuer; make any change that
does not adversely affect in any material respect the rights of any Holder of
the Notes under the Indenture; make any change to the subordination provisions
of the Indenture that would limit or terminate the benefits available to any
holder of Senior Debt under such provisions (subject to the consent of such
holders of Senior Debt pursuant to Section 9.03 of the Indenture); comply with
any requirement of the Commission in connection with the qualification of the
Indenture under the TIA; or provide for the issuance of additional Notes in
accordance with the Indenture. No amendment or supplement may be made to the
subordination provisions of this Indenture that adversely affects the rights of
any holder of Senior Debt then outstanding unless the holders of such Senior
Debt (or their Representative) consents to such change.
11. DEFAULTS AND REMEDIES. Each of the following is an Event
of Default under the Indenture: (1) failure to make the payment of any interest,
including Special Interest, on the Notes issued under the Indenture when the
same becomes due and payable, and such failure continues for a period of 30
days; (2) failure to make the payment of any principal of, or premium, if any,
on, any of the Notes issued under the Indenture when the same becomes due and
payable at their Stated Maturity, upon acceleration, redemption, required
repurchase or otherwise; (3) failure to comply with Section 5.01 of the
Indenture; (4) failure to comply with any other covenant or agreement in the
Notes or in the Indenture (other than a failure that is the subject of the
preceding clause (1), (2) or (3)), and such failure continues for 30 days after
written notice is given to the Issuer as provided in Section 6.01(b) of the
Indenture; (5) a default under any Debt (other than Non-Recourse Debt) by the
Issuer or any Restricted Subsidiary that results in acceleration of the maturity
of such Debt, or failure to pay any such Debt at maturity, in an aggregate
amount greater than $10.0 million; (6) any judgment or judgments for the payment
of money in an aggregate amount in excess of $10.0 million that shall be
rendered against the Issuer or any Restricted Subsidiary and that shall not be
waived, satisfied or discharged for any period of 30 consecutive days during
which a stay of enforcement shall not be in effect; (7) certain events involving
bankruptcy, insolvency or reorganization of the Issuer or any Significant
Subsidiary; and (8) any Subsidiary Guaranty relating to the Notes ceases to be
in full force and effect (other than in accordance with the terms of such
Subsidiary Guaranty), or any Subsidiary Guarantor denies or disaffirms its
obligations under its Subsidiary Guaranty relating to the Notes. A Default under
clause (4) is not an Event of Default in respect of the Notes until the Trustee
or the Holders of not less than 25% in aggregate principal amount of Notes then
outstanding notify the Issuer of the Default, and the Issuer does not cure such
Default within the time specified after receipt of such notice. If any Event of
Default (other than under clause (7)) occurs and is continuing, the Trustee or
the Holders of not less than 25% in aggregate principal amount of the Notes then
outstanding may declare all the Notes to be due and payable. In the case of an
Event of Default under clause (7), all
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outstanding Notes shall become due and payable immediately without any
declaration or other act on the part of the Trustee or the Holders. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture. In
the event of a declaration of acceleration of the Notes because an Event of
Default has occurred and is continuing as a result of the acceleration of any
Debt described in clause (5), the declaration of acceleration of the Notes shall
be automatically annulled if the holders of any Debt described in clause (5)
have rescinded the declaration of acceleration in respect of such Debt within 30
days of the date of such declaration and if (i) the annulment of the
acceleration of the Notes would not conflict with any judgment or decree of a
court of competent jurisdiction, and (ii) all existing Events of Default, except
nonpayment of principal or interest on the Notes that became due solely because
of the acceleration of the Notes, have been cured or waived. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the Notes
then outstanding may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal, premium, if any, or interest, including Special Interest, if any) if
it determines that withholding the notice is in the interest of the Holders.
Holders of not less than a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may on behalf of the Holders of all
of the Notes waive any existing Default or Event of Default and its consequences
under the Indenture, except a continuing Default or Event of Default in the
payment of interest or Special Interest on, or the principal of, the Notes. The
Issuer is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Issuer is required upon becoming aware of
any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
12. TRUSTEE DEALINGS WITH ISSUER. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer or any Affiliate of the Issuer with the same
rights it would have if it were not Trustee.
13. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, member, partner or stockholder of the
Issuer or any Subsidiary Guarantor as such, shall have any liability for any
Obligations of the Issuer or any Subsidiary Guarantor under the Notes, the
Indenture or for any claim based on, in respect of, or by reason of, such
Obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
14. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
15. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
16. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Issuer has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Issuer shall furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
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Technical Olympic USA, Inc.
0000 Xxxxxxxxx Xxxx.
Xxxxx 000-X
Xxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we)
assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Issuer. The agent may substitute
another to act for him.
Date:___________
Your Signature:___________________________________
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee:______________________________
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer
pursuant to Section 4.09, 4.13 or 4.17 of the Indenture, check the box below:
Section 4.09 Section 4.13 Section 4.17
If you want to elect to have only part of the Note purchased
by the Issuer pursuant to Section 4.09, 4.13 or Section 4.17 of the Indenture,
state the amount you elect to have purchased: $
Date:______________
Your Signature:________________________________
(Sign exactly as your name appears on the
face of this Note)
Soc. Sec. or Tax Identification
No.:___________________________________________
Signature Guarantee:________________________________
(Signature must be guaranteed by a financial institution that is a
member of the Securities Transfer Agent Medallion Program ("STAMP"), the Stock
Exchange Medallion Program ("SEMP"), the New York Stock Exchange, Inc. Medallion
Signature Program ("MSP") or such other signature guarantee program as may be
determined by the Registrar in addition to, or in substitution for, STAMP, SEMP
or MSP, all in accordance with the Securities Exchange Act of 1934, as amended.)
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of an interest in this Global Note for
an interest in another Global Note or for a Definitive Note, or exchanges of an
interest in another Global Note or Definitive Note for an interest in this
Global Note, have been made:
PRINCIPAL AMOUNT
AMOUNT OF OF THIS GLOBAL NOTE SIGNATURE OF
DECREASE IN AMOUNT OF INCREASE FOLLOWING SUCH AUTHORIZED SIGNATORY
PRINCIPAL AMOUNT IN PRINCIPAL AMOUNT DECREASE (OR OF TRUSTEE OR
DATE OF EXCHANGE OF THIS GLOBAL NOTE OF THIS GLOBAL NOTE INCREASE) NOTE CUSTODIAN
---------------- ------------------- ------------------- ------------------- --------------------
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Technical Olympic USA, Inc.
0000 Xxxxxxxxx Xxxx.
Xxxxx 000-X
Xxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Xxxxx Fargo Bank, National Association, as Trustee
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Services
Re: 7 1/2 Senior Subordinated Notes due 2011
Reference is hereby made to the Indenture, dated as of March
17, 2004 (the "Indenture"), among Technical Olympic USA, Inc., as issuer (the
"Issuer"), the Subsidiary Guarantors party thereto and Xxxxx Fargo Bank,
National Association, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
___________________, (the "Transferor") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount of $___________ in such Note[s] or interests (the
"Transfer"), to ___________________________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO
REGULATION S. The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a Person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and
B-1
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Distribution Compliance Period, the transfer
is not being made to a U.S. Person or for the account or benefit of a U.S.
Person (other than the Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF
A BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO
ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Issuer or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the Securities
Act;
or
(d) [ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or
Rule 904, in an aggregate principal amount of at least $250,000, and
the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or
Restricted Definitive Notes and the requirements of the exemption
claimed, which certification is supported by (1) a certificate executed
by the Transferee in the form of Exhibit D to the Indenture and (2) an
Opinion of Counsel provided by the Transferor or the Transferee (a copy
of which the Transferor has attached to this certification), to the
effect that such Transfer is in compliance with the Securities Act.
Upon consummation of the proposed transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the IAI Global Note and/or the
Definitive Notes and in the Indenture and the Securities Act.
B-2
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture. This certificate and
the statements contained herein are made for your benefit and the benefit of the
Issuer.
________________________________
[Insert Name of Transferor]
By:_____________________________
Name:
Title:
Dated:__________________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (A) OR (B)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(iv) [ ] Unrestricted Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Technical Olympic USA, Inc.
0000 Xxxxxxxxx Xxxx.
Xxxxx 000-X
Xxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Xxxxx Fargo Bank, National Association, as Trustee
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Services
Re: 7 1/2% Senior Subordinated Notes due 2011
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of March
17, 2004 (the "Indenture"), among Technical Olympic USA, Inc., as issuer (the
"Issuer"), the Subsidiary Guarantors party thereto and Xxxxx Fargo Bank,
National Association, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of $____________ in such Note[s] or interests (the "Exchange").
In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in
C-1
order to maintain compliance with the Securities Act and (iv) the Definitive
Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest in
the [CHECK ONE] 144A Global Note, Regulation S Global Note, IAI Global Note with
an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer and (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and
in the Indenture and the Securities Act.
C-2
This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuer.
________________________________
[Insert Name of Transferor]
By:_____________________________
Name:
Title:
Dated:__________________________
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Technical Olympic USA, Inc.
0000 Xxxxxxxxx Xxxx.
Xxxxx 000-X
Xxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Xxxxx Fargo Bank, National Association, as Trustee
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Services
Re: 7 1/2% Senior Subordinated Notes due 2011
Reference is hereby made to the Indenture, dated as of March
17, 2004 (the "Indenture"), among Technical Olympic USA, Inc., as issuer (the
"Issuer"), the Subsidiary Guarantors signatory thereto and Xxxxx Fargo Bank,
National Association, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture. In connection with our
proposed purchase of $____________ aggregate principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or
any interest therein is subject to certain restrictions and conditions set forth
in the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Issuer or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Issuer a signed letter substantially in the form of this letter and an Opinion
of Counsel in form reasonably acceptable to the Issuer to the effect that such
transfer is in compliance with the Securities Act, and such transfer is in an
aggregate principal amount of at least $250,000, (D) outside the United States
in accordance with Rule 903 or Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144 under the Securities Act or
another applicable exemption from registration under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and we
further agree to provide to any Person purchasing the Definitive Note or
beneficial interest in a Global
D-1
Note from us in a transaction meeting the requirements of clauses (A) through
(E) of this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Issuer such certifications, legal opinions and other information as you and the
Issuer may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Issuer are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
______________________________________
[Insert Name of Accredited Investor]
By:___________________________________
Name:
Title:
Dated:_______________
D-2
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Subsidiary Guarantor (which term includes any successor
Person under the Indenture), jointly and severally, unconditionally guarantees,
to the extent set forth in the Indenture and subject to the provisions in the
Indenture, dated as of March 17, 2004 (the "Indenture"), among Technical Olympic
USA, Inc., as issuer (the "Issuer"), the Subsidiary Guarantors listed on the
signature pages thereto and Xxxxx Fargo Bank, National Association, as trustee
(the "Trustee"), (a) the due and punctual payment of the principal of, premium,
if any, and interest, including Special Interest, if any, on, the Issuer's 7
1/2% Senior Subordinated Notes due 2011 (the "Notes"), whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue principal of, premium, if any, and interest, including Special
Interest, if any, on, the Notes, if lawful, and the due and punctual performance
of all other obligations of the Issuer to the Holders or the Trustee, all in
accordance with the terms of the Indenture and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that
the same shall be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. The obligations of the Subsidiary Guarantors to the
Holders of Notes and to the Trustee pursuant to the Subsidiary Guaranty and the
Indenture are expressly set forth in Article 10 of the Indenture, and reference
is hereby made to the Indenture for the precise terms of the Subsidiary
Guaranty. This Subsidiary Guaranty is subject to release as and to the extent
set forth in Sections 8.02, 8.03 and 10.05 of the Indenture. Each Holder of a
Note, by accepting the same, agrees to and shall be bound by such provisions.
Capitalized terms used herein and not defined are used herein as so defined in
the Indenture.
DP-NH Investments, LP
DP-NH Management, LLC
Xxxxx Homes Delaware, Inc.
Newmark Homes, XX
Xxxxxxx Homes Purchasing, LP
Pacific United, LP
Silver Oak Trails, LP
Silverlake Interests, LC
TOI, LLC
TOUSA Financing, Inc.
By:_______________________________________________
Name: Xxxxx X. XxXxxx
Title: Vice President - Finance and
Administration
TOUSA Associates Services Company
By:_______________________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President and Secretary
E-1
Newmark Homes Business Trust
By:_______________________________________________
Name: Xxxxx Xxxxxx
Title: Managing Trustee
Alliance Insurance and Information Services, LLC
Xxxxx Homes Residential Construction, LLC
Xxxxx/Xxxxx, LLC
XxXxx Landing, LLC
Newmark Homes, LLC
Preferred Builders Realty, Inc.
Preferred Home Mortgage Company
Prestige Abstract & Title, LLC
Professional Advantage Title, Ltd.
The Century Title Agency, Inc.
TOUSA Delaware, Inc.
TOUSA Homes, Inc.
TOUSA Ventures, LLC
Universal Land Title, Inc.
Universal Land Title Investment #1, LLC
Universal Land Title Investment #2, LLC
Universal Land Title Investment #3, LLC
Universal Land Title Investment #4, LLC
Universal Land Title of South Florida, Ltd.
Universal Land Title of Texas, Inc.
Universal Land Title of The Palm Beaches, Ltd.
By:_______________________________________________
Name: Xxxxx X. XxXxxx
Title: Vice President and Treasurer
E-2
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
This SUPPLEMENTAL INDENTURE, dated as of __________ ___, ____,
is among Technical Olympic USA, Inc., a Delaware corporation (the "Company"),
each of the parties identified under the caption "Subsidiary Guarantors" on the
signature page hereto (the "Guarantors") and Xxxxx Fargo Bank, National
Association, a national banking association, as Trustee.
RECITALS
WHEREAS, the Company, certain Subsidiary Guarantors and the
Trustee entered into an Indenture, dated as of March 17, 2004 (the "Indenture"),
pursuant to which the Company has originally issued $125,000,000 in aggregate
principal amount of 7 1/2% Senior Subordinated Notes due 2011 (the "Notes"); and
WHEREAS, Section 9.01(a)(iv) of the Indenture provides that
the Company, the Subsidiary Guarantors and the Trustee may amend or supplement
the Indenture in order to add any new Subsidiary Guarantor to comply with
Section 10.04 thereof, without the consent of the Holders of the Notes; and
WHEREAS, all acts and things prescribed by the Indenture, by
law and by the charter and the bylaws (or comparable constituent documents) of
the Company, of the Subsidiary Guarantors and of the Trustee necessary to make
this Supplemental Indenture a valid instrument legally binding on the Company,
the Subsidiary Guarantors and the Trustee, in accordance with its terms, have
been duly done and performed;
NOW, THEREFORE, to comply with the provisions of the Indenture
and in consideration of the above premises, the Company, the Subsidiary
Guarantors and the Trustee covenant and agree for the equal and proportionate
benefit of the respective Holders of the Notes as follows:
ARTICLE 1.
Section 1.01. This Supplemental Indenture is supplemental to
the Indenture and does and shall be deemed to form a part of, and shall be
construed in connection with and as part of, the Indenture for any and all
purposes.
Section 1.02. This Supplemental Indenture shall become
effective immediately upon its execution and delivery by each of the Company,
the Subsidiary Guarantors and the Trustee.
ARTICLE 2.
Section 2.01. From this date, in accordance with Section 10.04
and by executing this Supplemental Indenture and the accompanying notation of
Subsidiary Guarantee (a copy of which is attached hereto), the Subsidiary
Guarantors whose signatures appear below are subject to the provisions of the
Indenture to the extent provided for in Article 10 thereof.
ARTICLE 3.
Section 3.01. Except as specifically modified herein, the
Indenture and the Notes are in all respects ratified and confirmed (mutatis
mutandis) and shall remain in full force and effect in accor-
F-1
dance with their terms with all capitalized terms used herein without definition
having the same respective meanings ascribed to them as in the Indenture.
Section 3.02. Except as otherwise expressly provided herein,
no duties, responsibilities or liabilities are assumed, or shall be construed to
be assumed, by the Trustee by reason of this Supplemental Indenture. This
Supplemental Indenture is executed and accepted by the Trustee subject to all
the terms and conditions set forth in the Indenture with the same force and
effect as if those terms and conditions were repeated at length herein and made
applicable to the Trustee with respect hereto.
Section 3.03. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE AND ENFORCE THIS SUPPLEMENTAL INDENTURE.
Section 3.04. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
such executed copies together shall represent the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, all as of the date first written
above.
TECHNICAL OLYMPIC USA, INC.
By:__________________________________________
Name:
Title:
[SUBSIDIARY GUARANTORS]
By:__________________________________________
Name:
Title:
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Trustee
By:__________________________________________
Name:
Title:
F-2
