EXHIBIT 10.3
EXECUTION COPY
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EXHIBIT 10.3
PARENT GUARANTEE AGREEMENT
between
ORLEANS HOMEBUILDERS, INC
as Parent Guarantor,
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Guarantee Trustee
Dated as of November 23, 2005
OHI FINANCING, INC.
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TABLE OF CONTENTS
PAGE
ARTICLE I INTERPRETATION AND DEFINITIONS......................... 1
Section 1.1. Interpretation....................................... 1
Section 1.2. Definitions.......................................... 2
ARTICLE II REPORTS................................................ 5
Section 2.1. List of Holders...................................... 5
Section 2.2. Periodic Reports to the Guarantee Trustee............ 6
Section 2.3. Event of Default; Waiver............................. 6
Section 2.4. Event of Default; Notice............................. 6
ARTICLE III POWERS, DUTIES AND RIGHTS OF THE GUARANTEE
TRUSTEE................................................ 7
Section 3.1. Powers and Duties of the Guarantee Trustee........... 7
Section 3.2. Certain Rights of the Guarantee Trustee.............. 8
Section 3.3. Compensation......................................... 10
Section 3.4. Indemnity............................................ 10
Section 3.5. Securities........................................... 10
ARTICLE IV GUARANTEE TRUSTEE...................................... 10
Section 4.1. Guarantee Trustee; Eligibility....................... 11
Section 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee.............................................. 11
ARTICLE V PARENT GUARANTEE....................................... 12
Section 5.1. Parent Guarantee..................................... 12
Section 5.2. Waiver of Notice and Demand.......................... 12
Section 5.3. Obligations Not Affected............................. 12
Section 5.4. Rights of Holders, the Note Holders and the Trust.... 13
Section 5.5. Guarantee of Payment................................. 14
Section 5.6. Subrogation.......................................... 14
Section 5.7. Independent Obligations.............................. 14
Section 5.8. Enforcement.......................................... 14
Section 5.9. Subordination........................................ 14
ARTICLE VI TERMINATION............................................ 15
Section 6.1. Termination.......................................... 15
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE VII MISCELLANEOUS............................................ 15
Section 7.1. Successors and Assigns................................. 15
Section 7.2. Amendments............................................. 15
Section 7.3. Notices................................................ 16
Section 7.4. Benefit................................................ 17
Section 7.5. Governing Law.......................................... 17
Section 7.6. Submission to Jurisdiction............................. 17
Section 7.7. Counterparts........................................... 17
Section 7.8. The Indenture.......................................... 18
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR 18
LEASE AND OWNERSHIP OF THE COMPANY.......................
Section 8.1. Parent Guarantor May Consolidate, etc., Only on Certain
Terms.................................................. 18
Section 8.2. Dividends, Distributions and Payments.................. 18
Section 8.3. Successor Company Substituted.......................... 19
Section 8.4. Ownership of the Company............................... 20
ARTICLE IX REPRESENTATIONS AND WARRANTIES........................... 20
Section 9.1. Representations and Warranties of Parent Guarantor..... 20
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This PARENT GUARANTEE AGREEMENT, dated as of November 23, 2005, executed and
delivered by Orleans Homebuilders, Inc., a Delaware corporation (the "Parent
Guarantor") having its principal office at One Greenwood Square, 0000 Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000, and JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, a national banking association, as trustee (in such capacity, the
"Guarantee Trustee"), for the benefit of the Trust (as defined herein), the
Holders (as defined herein) and the Note Holders (as defined herein) from time
to time of the Notes (as defined herein) of OHI Financing, Inc. a Delaware
corporation (the "Company").
WITNESSETH:
WHEREAS, pursuant to an Indenture, dated as of the date hereof (the
"Indenture"), among the Company and JPMorgan Chase Bank, National Association,
as trustee, the Company is issuing Seventy Seven Million Three Hundred Twenty
Thousand ($77,320,000) aggregate principal amount of its junior subordinated
interest notes (the "Notes") having the terms set forth in the Indenture to
Orleans Homebuilders Trust II, a Delaware statutory trust (the "Trust"),
evidencing loans made to the Company by the Trust of proceeds from the issuance
of undivided preferred beneficial interests in the assets of the Trust (the
"Preferred Securities"), and undivided common beneficial interests in the
assets of the Trust (collectively, together with the Preferred Securities, the
"Trust Securities");
WHEREAS, the Parent Guarantor owns one hundred percent (100%) of the
outstanding capital stock of the Company, and will substantially benefit from
the issuance of the Notes by the Company and the sale of the Preferred
Securities by the Trust; and
WHEREAS, as incentive for the Holders (as defined herein) to purchase
Preferred Securities from the Trust and for the Trust to purchase the Notes
with the proceeds from such purchase, the Parent Guarantor desires irrevocably
and unconditionally to agree, to the extent set forth herein, to pay to the
Note Holders (as defined herein) the Parent Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of Preferred
Securities and the purchase of the Notes by the Trust, the Parent Guarantor
executes and delivers this Parent Guarantee Agreement to provide as follows for
the benefit of the Holders and the Note Holders (as defined herein):
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1. Interpretation.
In this Parent Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Parent Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.2
(b) the words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(c) all references to "the Parent Guarantee Agreement" or "this Parent
Guarantee Agreement" are to this Parent Guarantee Agreement, as modified,
supplemented or amended from time to time;
(d) all references in this Parent Guarantee Agreement to articles and
sections are to articles and sections of this Parent Guarantee Agreement
unless otherwise specified;
(e) the words "hereby", "herein", "hereof' and "hereunder" and other
words of similar import refer to this Parent Guarantee Agreement as a whole
and not to any particular Article, Section or other subdivision;
(f) a reference to the singular includes the plural and vice versa;
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
Section 1.2. Definitions.
As used in this Parent Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings:
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled' have meanings
correlative to the foregoing.
"Beneficiaries" means the Guarantee Trustee, the Delaware Trustee, the
Property Trustee and any successors thereof.
"Board of Directors" means either the board of directors of the Parent
Guarantor or any duly authorized committee of that board.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Trust.
"Debt" means with respect to any Person, whether recourse is to all or a
portion of the assets of such Person, whether currently existing or
hereafter incurred, and whether or not contingent and without duplication,
(i) every obligation of such Person for money borrowed; (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses; (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued
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for the account of such Person; (iv) every obligation of such Person issued
or assumed as the deferred purchase price of property or services (but
excluding trade accounts payable arising in the ordinary course of
business); (v) every capital lease obligation of such Person; (vi) all
indebtedness of such Person, whether incurred on or prior to the date of
this Parent Guarantee Agreement or thereafter incurred, for claims in
respect of derivative products, including interest rate, foreign exchange
rate and commodity forward contracts, options, swaps and similar
arrangements; (vii) every obligation of the type referred to in clauses (i)
through (vi) of another Person and all dividends of another Person the
payment of which, in either case, such Person has guaranteed or is
responsible or liable for, directly or indirectly, as obligor or otherwise;
and (viii) any renewals, extensions, refundings, amendments or
modifications of any obligation of the type referred to in clauses (i)
through (vii).
"Event of Default' means a default by the Parent Guarantor on any of its
payment or other obligations under this Parent Guarantee Agreement;
provided that except with respect to a default in payment of any Parent
Guarantee Payments, such default shall not be an Event of Default unless
the Parent Guarantor shall have received notice of such default in
accordance with the terms herein from the Guarantee Trustee, the Trust or
any Holder and shall have failed to cure such default within thirty (30)
days after receipt of such notice.
"Guarantee Trustee" means JPMorgan Chase Bank, National Association,
until a Successor Guarantee Trustee, as defined below, has been appointed
and has accepted such appointment pursuant to the terms of this Parent
Guarantee Agreement, and thereafter means each such Successor Guarantee
Trustee, in any case solely in its capacity as guarantee trustee and not in
its individual capacity.
"Holder" means any holder, as registered on the books and records of the
Trust, of any Preferred Securities; provided that in determining whether
the holders of the requisite percentage of Preferred Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not
include the Parent Guarantor, the Guarantee Trustee or any Affiliate of the
Parent Guarantor or the Guarantee Trustee.
"List of Holders" has the meaning specified in Section 2.1.
"Majority in Liquidation Amount of the Preferred Securities" means a
vote by the Holder(s), voting separately as a class, of more than fifty
percent (50%) of the aggregate Liquidation Amount of all then outstanding
Preferred Securities issued by the Trust.
"Majority in Principal Amount of the Notes" means a vote by the Note
Holder(s), voting separately as a class, of more than fifty percent (50%)
of the aggregate principal amount of all then outstanding Notes.
"Note Holder" means any holder, as registered on the books and records
of the Trustee (as defined in the Indenture), of any Notes; provided that
in determining whether the holders of the requisite percentage of Notes
have given any request, notice, consent or waiver hereunder, "Note Holder"
shall not include either the Parent Guarantor, the
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Company, the Guarantee Trustee or any Affiliate of either of the Parent
Guarantor or the Guarantee Trustee.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chief Executive Officer, President or a Vice President of
such Person, and by the Chief Financial Officer, Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of such Person, and
delivered to the Guarantee Trustee. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in
this Parent Guarantee Agreement (other than the certificate provided
pursuant to Section 2.2) shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to
enable such officer 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, in the opinion of each officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for an employee of the Guarantor or any Affiliate of the Guarantor.
"Parent Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Notes, to the
extent not fully and promptly paid or made by the Company immediately after
the expiration of any grace or cure period applicable to the Company under
the terms of the Indenture: (a) any accumulated and unpaid payments of
interest or principal, or other amounts, required to be paid on and in
accordance with terms and provisions of the Notes and the Indenture; and
(b) payment of any other amounts to be paid by the Company under and in
accordance with the Indenture, including all amounts due to any Beneficiary
by the Company.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company,
limited liability company, trust, unincorporated association, government or
any agency or political subdivision thereof or any other entity of whatever
nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, the
officer in the Institutional Trust Services Department of the Trustee
having direct responsibility for the administration of this Parent
Guarantee Agreement.
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"Rights Plan" means a plan of the Parent Guarantor or any subsidiary of
the Parent Guarantor, as the case may be, providing for the issuance by the
Parent Guarantor or such subsidiary to all holders of its common stock of
rights entitling the holders thereof to subscribe for or purchase shares of
any class or series of capital stock of the Parent Guarantor or other
subsidiary, as the case may be, which rights (i) are deemed to be
transferred with such shares of such common stock and (ii) are also issued
in respect of future issuances of such common stock, in each case until the
occurrence of a specified event or events.
"Senior Debt" means the principal of and any premium and interest on
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Parent Guarantor, whether
or not such claim for post-petition interest is allowed in such proceeding)
all Debt of the Parent Guarantor, whether incurred on or prior to the date
of this Parent Guarantee Agreement or thereafter incurred, unless it is
provided in the instrument creating or evidencing the same or pursuant to
which the same is outstanding, that such obligations are not superior in
right of payment to the Notes issued under the Indenture and the Parent
Guarantee Payments; provided that Senior Debt shall not be deemed to
include any (i) debt or (ii) other debt securities (and guarantees, if any,
in respect of such debt securities) issued to any trust other than the
Trust (or a trustee of any such trust), partnership or other entity
affiliated with the Parent Guarantor that is a financing vehicle of the
Parent Guarantor (a "financing entity") in connection with the issuance by
such financing entity of equity securities or other securities, in each
case of (i) or (ii) pursuant to an instrument that ranks pari passu with or
junior in right to payment of the Notes issued under the Indenture and the
Parent Guarantee Payments.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section
4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
and as in effect on the date of this Parent Guarantee Agreement.
Capitalized or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Indenture as in effect on
the date hereof.
ARTICLE II
REPORTS
Section 2.1. List of Holders.
The Parent Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee at such times as the Guarantee Trustee may request in writing, within
thirty (30) days after the receipt by the Parent Guarantor of any such request,
a list, in such form as the Guarantee Trustee may reasonably require, of the
names and addresses of the Holders or Note Holders (each a "List of Holders")
as of a date not more than fifteen (15) days prior to the time such list is
furnished,
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in each case to the extent such information is in the possession or control of
the Parent Guarantor or the Company and is not identical to a previously
supplied List of Holders or has not otherwise been received by the Guarantee
Trustee in its capacity as such. The Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
Section 2.2. Periodic Reports to the Guarantee Trustee.
(a) The Parent Guarantor shall deliver to the Guarantee Trustee, within
ninety (90) days after the end of each fiscal year of the Parent Guarantor
ending after the date of this Parent Guarantee Agreement, an Officers'
Certificate covering the preceding fiscal year, stating whether or not to
the knowledge of the signers thereof the Parent Guarantor is in default in
the performance or observance of any of the terms or provisions or any of
the conditions of this Parent Guarantee Agreement (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Parent Guarantor shall be in default thereof, specifying all such defaults
and the nature and status thereof of which they have knowledge.
(b) The Parent Guarantor shall furnish the information and
documentation the Company is required to furnish pursuant to Section 7.3(b)
of the Indenture. The delivery requirement under this Section 2.2(b) may be
satisfied by the Company's compliance with Section 7.3(b) of the Indenture.
Section 2.3. Event of Default; Waiver.
Neither the Trust nor the Note Holders shall have the right to waive any
past Event of Default without the consent of the Holders of a Majority in
Liquidation Amount of the Preferred Securities. The Holders of a Majority in
Liquidation Amount of the Preferred Securities may, on behalf of the Holders,
the Trust or the Note Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Parent Guarantee Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent therefrom.
Section 2.4. Event of Default; Notice.
(a) The Guarantee Trustee shall, within ninety (90) days after the
occurrence hereunder of a default, transmit to the Trust, the Note Holders,
the Company and the Holders notices of all defaults actually known to the
Guarantee Trustee, unless such defaults have been cured or waived before the
giving of such notice. For the purpose of this Section 2.4, the term
"default" means any event that is, or after notice or lapse of time or both
would become, an Event of Default.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Parent Guarantee Agreement shall have obtained written notice, of such Event
of Default from the Parent Guarantor, the Company, a Note Holder or a
Holder.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Parent Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, the Note Holders and the Trust, and
the Guarantee Trustee shall not transfer this Parent Guarantee Agreement to
any Person except a Holder or Note Holder exercising its rights pursuant to
Section 5.4(d) or to a Successor Guarantee Trustee upon acceptance by such
Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee
shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment
hereunder, and such vesting and succession of title shall be effective
whether or not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Guarantee Trustee.
(b) The rights, immunities, duties and responsibilities of the
Guarantee Trustee shall be as provided by this Parent Guarantee Agreement
and there shall be no other duties or obligations, express or implied, of
the Guarantee Trustee. Notwithstanding the foregoing, no provisions of this
Parent Guarantee Agreement shall require the Guarantee Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or not herein expressly
so provided, every provision of this Parent Guarantee Agreement relating to
the conduct or affecting the liability of or affording protection to the
Guarantee Trustee shall be subject to the provisions of this Section 3.1.
To the extent that, at law or in equity, the Guarantee Trustee has duties
and liabilities relating to the Trust, the Parent Guarantor or the Note
Holders or the Holders, the Guarantee Trustee shall not be liable to any
Note Holders or the Holder for the Guarantee Trustee's good faith reliance
on the provisions of this Parent Guarantee Agreement. The provisions of
this Parent Guarantee Agreement, to the extent that they restrict the
duties and liabilities of the Guarantee Trustee otherwise existing at law
or in equity, are agreed by the Parent Guarantor and the Note Holders or
the Holders to replace such other duties and liabilities of the Guarantee
Trustee.
(c) No provision of this Parent Guarantee Agreement shall be construed
to relieve the Guarantee Trustee from liability for its own negligent
action, negligent failure to act or own willful misconduct, except that:
(i) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made; and
(ii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of
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the Note Holders of not less than a Majority in Principal Amount of the
Notes or, in the case of a waiver under Section 2.3, the Holders of not
less than a Majority in Liquidation Amount of the Preferred Securities
relating to the time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee, or exercising any trust
or power conferred upon the Guarantee Trustee under this Parent
Guarantee Agreement.
Section 3.2. Certain Rights of the Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) the Guarantee Trustee may conclusively rely, and shall be fully
protected in acting or refraining from acting in good faith and in
accordance with the terms hereof, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document reasonably believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Parent Guarantor contemplated by this
Parent Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein;
(iii) the Guarantee Trustee may consult with counsel, and the advice of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in reliance thereon and in accordance with such
advice. Such counsel may be counsel to the Guarantee Trustee, the Parent
Guarantor or any of their respective Affiliates and may be one of the
Guarantee Trustee's employees. The Guarantee Trustee shall have the right
at any time to seek instructions concerning the administration of this
Parent Guarantee Agreement from any court of competent jurisdiction;
(iv) the Guarantee Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Parent Guarantee Agreement at
the request or direction of any Holder or Note Holder, unless such Holder
or Note Holder shall have offered to the Guarantee Trustee reasonable
security or indemnity against the costs, expenses (including reasonable
attorneys' fees and expenses) and liabilities that might be incurred by it
in complying with such request or direction, including such reasonable
advances as may be requested by the Guarantee Trustee; provided that
nothing contained in this Section 3.2(a)(iv) shall be taken to relieve the
Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this Parent
Guarantee Agreement; provided, further, that nothing contained in this
Section 3.2(a)(iv) shall prevent the Guarantee Trustee from exercising its
rights under Section 4.2 hereof;
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(v) the Guarantee Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit, and if the Guarantee Trustee shall determine to make such inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Parent Guarantor, personally or by agent or attorney;
(vi) the Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents, attorneys, custodians or nominees and the Guarantee Trustee
shall not be responsible for any misconduct or negligence on the part of
any such agent, attorney, custodian or nominee appointed with due care by
it hereunder;
(vii) whenever in the administration of this Parent Guarantee Agreement
the Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right hereunder, the Guarantee Trustee
(A) may request instructions from the Trust, the Note Holders of a Majority
in Principal Amount of the Notes or the Holders of a Majority in
Liquidation Amount of the Preferred Securities, (B) may refrain from
enforcing such remedy or right or taking such other action until such
requested instructions are received and (C) shall be protected in acting in
accordance with such instructions; provided, however, that the Guarantee
Trustee must first obtain the consent of the Holders of a Majority in
Liquidation Amount of the Preferred Securities prior to taking any action
upon the direction of the Trust;
(viii) except as otherwise expressly provided by this Parent Guarantee
Agreement, the Guarantee Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this Parent
Guarantee Agreement; and
(ix) whenever, in the administration of this Parent Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting to take any
action hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Parent Guarantor.
(b) No provision of this Parent Guarantee Agreement shall be deemed to
impose any duty or obligation on the Guarantee Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on
it in any jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
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Section 3.3. Compensation.
The Parent Guarantor agrees to pay to the Guarantee Trustee from time to
time reasonable compensation for all services rendered by it hereunder in such
amounts as the Company and the Guarantee Trustee shall agree from time to time
(which compensation shall not be limited by any provisions of law in regard to
the compensation of a trustee of an express trust) and to reimburse the
Guarantee Trustee upon request for all reasonable expenses, disbursements and
advances (including the reasonable fees and expenses of its attorneys and
agents) incurred or made by the Guarantee Trustee in accordance with any
provisions of this Parent Guarantee Agreement except any such expense,
disbursement or advance as may be attributable to the negligence, bad faith or
willful misconduct of the Guarantee Trustee.
Section 3.4. Indemnity.
The Parent Guarantor agrees to indemnify and hold harmless the Guarantee
Trustee and any of its Affiliates and any of their officers, directors,
shareholders, employees, representatives or agents from and against any loss,
damage, liability, tax (other than income, franchise or other taxes imposed on
amounts paid pursuant to Section 3.3), penalty, expense or claim of any kind or
nature whatsoever incurred without negligence, bad faith or willful misconduct
on its part, arising out of or in connection with the acceptance or
administration of this Parent Guarantee Agreement, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. The
Guarantee Trustee will not claim or exact any lien or charge on any Parent
Guarantee Payments as a result of any amount due to it under this Parent
Guarantee Agreement. This indemnity shall survive the termination of this
Parent Guarantee Agreement or the resignation or removal of the Guarantee
Trustee.
In no event shall the Guarantee Trustee be liable for any indirect, special,
punitive or consequential loss or damage of any kind whatsoever, including, but
not limited to, lost profits, even if the Guarantee Trustee has been advised of
the likelihood of such loss or damage and regardless of the form of action.
In no event shall the Guarantee Trustee be liable for any failure or delay
in the performance of its obligations hereunder because of circumstances beyond
its control, including, but not limited to, acts of God, flood, war (declared
or undeclared), terrorism, fire, riot, embargo, government action, including
any laws, ordinances, regulations, governmental action or the like which delay,
restrict or prohibit the providing of the services contemplated by this Parent
Guarantee Agreement.
Section 3.5. Securities.
The Guarantee Trustee or any other agent of the Guarantee Trustee, in its
individual or any other capacity, may become the owner or pledgee of the Notes.
ARTICLE IV
GUARANTEE TRUSTEE
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Section 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Parent Guarantor or the Company; and
(ii) be a corporation organized and doing business under the laws
of the United States or of any State thereof, authorized to exercise
corporate trust powers, having a combined capital and surplus of at
least fifty million dollars ($50,000,000), subject to supervision or
examination by Federal or State authority and having an office within
the United States. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of such
supervising or examining authority, then, for the purposes of this
Section 4.1, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign
in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of section 310(b) of the Trust Indenture Act,
the Guarantee Trustee shall either eliminate such interest or resign in the
manner and with the effect set out in Section 4.2(c).
Section 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Parent Guarantor, except during
an Event of Default.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and
delivered to the Parent Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal
or resignation. The Guarantee Trustee may resign from office (without need
for prior or subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Parent Guarantor, which
resignation shall not take effect until a Successor Guarantee Trustee has
been appointed and has accepted such appointment by instrument in writing
executed by such Successor Guarantee Trustee and delivered to the Parent
Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within thirty (30)
days after delivery to the Parent Guarantor of an instrument of
resignation, the resigning Guarantee Trustee may petition, at the expense
of the Parent Guarantor, any court of competent jurisdiction for
appointment of a
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Successor Guarantee Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor Guarantee
Trustee.
ARTICLE V
PARENT GUARANTEE
Section 5.1. Parent Guarantee.
(a) The Parent Guarantor irrevocably and unconditionally agrees to pay
in full to the Note Holders and/or the Beneficiaries, as the case may be,
the Parent Guarantee Payments (without duplication of amounts theretofore
paid by or on behalf of the Company), as and when due, regardless of any
defense (except for the defense of payment by the Company), right of set-
off or counterclaim which the Company may have or assert. The Parent
Guarantor's obligation to make a Parent Guarantee Payment may be satisfied
by direct payment of the required amounts by the Parent Guarantor to the
Note Holders and/or the Beneficiaries, as the case may be, or by causing
the Company to pay such amounts to the Note Holders and/or the
Beneficiaries, as the case may be. The Parent Guarantor shall give prompt
written notice to the Guarantee Trustee in the event the Parent Guarantor
makes any direct payment to the Note Holders and/or the Beneficiaries, as
the case may be.
(b) The Parent Guarantor expressly agrees that the guarantee set forth
in the immediately preceding paragraph includes, but is not limited to, the
guarantee of the full and prompt payment of the Parent Guarantor's
obligation to make any and all interest and principal payments on the Notes
which would be required to be made by the Company under the Indenture,
including, without limitation, any amounts of Additional Interest, the
Optional Redemption Price, Liquidation Amount, the Special Redemption
Price, Additional Tax Sums, or any other amount set forth in the Indenture
or the Note.
(c) All Parent Guarantee Payments made from time to time with respect
to this Parent Guarantee Agreement shall be in U.S. dollars.
Section 5.2. Waiver of Notice and Demand.
The Parent Guarantor hereby waives notice of acceptance of the Parent
Guarantee Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Guarantee Trustee, the Company, the Trust, the Note Holders or any
other Person before proceeding against the Parent Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
Section 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Parent Guarantor
under this Parent Guarantee Agreement shall be absolute and unconditional, and
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
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(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Company of any express or implied
agreement, covenant, term or condition relating to the Notes to be
performed or observed by the Company;
(b) the extension of time for the payment by the Company of all or any
portion of the obligations under the Notes (including the extension of any
interest payment period on the Notes as provided in the Indenture) or any
other sums payable under the terms of the Notes or the extension of time
for the performance of any other obligation under, arising out of, or in
connection with, the Notes;
(c) any failure, omission, delay or lack of diligence on the part of
the Trust or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Trust or the Holders pursuant
to the terms of the Notes, or any action on the part of the Company
granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Company or any of the assets of the Company;
(e) any invalidity of, or defect or deficiency in, the Notes;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent
of this Section 5.3 that the obligations of the Parent Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders, the Note Holders or the Trust to
give notice to, or obtain the consent of, the Parent Guarantor with respect to
the happening of any of the foregoing. No set-off, counterclaim, reduction or
diminution of any obligation, or any defense of any kind or nature that the
Parent Guarantor has or may have shall be available hereunder to the Parent
Guarantor against the Trust, any Holder or any Note Holder to reduce the
payments thereto under this Parent Guarantee Agreement.
Section 5.4. Rights of Holders, the Note Holders and the Trust.
The Parent Guarantor expressly acknowledges that: (a) this Parent Guarantee
Agreement will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders, the Note Holders and the Trust; (b) the Guarantee
Trustee has the right to enforce this Parent Guarantee Agreement on behalf of
the Holders, the Note Holders and the Trust; (c) the Holders of a Majority in
Liquidation Amount of the Preferred Securities, the Note Holders of a Majority
in Principal Amount of the Notes and the Trust have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Parent Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee Trustee under this
Parent Guarantee Agreement (provided, however, the Trust shall not exercise
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such right without the consent of the Holders of a Majority in Liquidation
Amount of the Preferred Securities); and (d) the Trust, any Note Holder or any
Holder may institute a legal proceeding directly against the Parent Guarantor
to enforce their respective rights under this Parent Guarantee Agreement,
without first instituting a legal proceeding against the Guarantee Trustee, the
Company or any other Person.
Section 5.5. Guarantee of Payment.
This Parent Guarantee Agreement creates a guarantee of payment and not of
collection. This Parent Guarantee Agreement will not be discharged except by
payment of the Parent Guarantee Payments in full (without duplication of
amounts theretofore paid by the Company) or upon payment in full of the Notes
and all amounts owed by the Company under the Indenture to the Note Holders or
beneficiary thereof.
Section 5.6. Subrogation.
The Parent Guarantor shall be subrogated to all (if any) rights of the
Trust, the Note Holders and the Holders against the Company in respect of any
amounts paid to the Trust or the Note Holders by the Parent Guarantor under
this Parent Guarantee Agreement and shall have the right to waive payment by
the Company pursuant to Section 5.1 provided that the Parent Guarantor shall
not (except to the extent required by mandatory provisions of law) be entitled
to enforce or exercise any rights it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Parent Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Parent Guarantee Agreement.
If any amount shall be paid to the Parent Guarantor in violation of the
preceding sentence, the Parent Guarantor agrees to hold such amount in trust
for the Holders, Note Holders and the holders of any beneficial interests
thereof and to pay over such amount to the appropriate Note Holder or Holder,
as applicable.
Section 5.7. Independent Obligations.
The Parent Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Company with respect to the Notes, any
other guarantee agreement and with respect to any obligations of the Parent
Guarantor, the Trust or the Company with respect to the Notes and the Preferred
Securities and that the Parent Guarantor shall be liable as principal and as
debtor hereunder to make Parent Guarantee Payments pursuant to the terms of
this Parent Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.3.
Section 5.8. Enforcement.
A Beneficiary or a Note Holder may enforce the obligations of the Parent
Guarantor contained in Section 5.1 directly against the Parent Guarantor, and
the Parent Guarantor waives any right or remedy to require that any action be
brought against the Company or any other person or entity before proceeding
against the Parent Guarantor
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Section 5.9.Subordination.
The obligations of the Parent Guarantor under this Parent Guarantee
Agreement shall constitute unsecured obligations of the Parent Guarantor and
shall rank subordinate and junior in right of payment to the prior payment in
full of all Senior Debt of the Parent Guarantor to the same extent and in the
same manner that the payment of the principal of and any premium and interest
(including any Additional Interest) on the Securities (as defined in the
Indenture) is subordinated to the prior payment in full of all Senior Debt (as
defined in the Indenture) of the Company. The subordination provisions
contained in Article XII of the Indenture shall apply to the obligations of the
Parent Guarantor under this Parent Guarantee Agreement as if such Article XII
were set forth herein at length with such changes to such Article XII as
necessary to make the provisions of Article XII fully applicable to the Parent
Guarantor and its Senior Debt on the one hand and the Holders, Note Holders and
Beneficiaries on the other.
ARTICLE VI
TERMINATION
Section 6.1. Termination.
This Parent Guarantee Agreement shall terminate and be of no further force
and effect upon the earlier of (a) full payment of the Redemption Price of all
Preferred Securities or (b) full payment of the Notes and all amounts payable
in accordance with the Indenture. Notwithstanding the foregoing, this Parent
Guarantee Agreement will continue to be effective or will be reinstated, as the
case may be, if at any time any Holder, the Note Holder or the Trust must
restore payment of any sums paid with respect to any Notes (including amounts
paid under this Parent Guarantee Agreement). The obligations of the Parent
Guarantor under Sections 3.3 and Section 3.4 shall survive any such termination
or the resignation and removal of the Guarantee Trustee.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Successors and Assigns.
All guarantees and agreements contained in this Parent Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Parent Guarantor and shall inure to the benefit of the Trust and the
Holders or the Note Holders. Except in connection with a consolidation, merger
or sale involving the Parent Guarantor that is permitted under Article IX
hereof, and pursuant to which the successor or assignee agrees in writing to
perform the Parent Guarantor's obligations hereunder, the Parent Guarantor
shall not assign its rights or delegate its obligations hereunder without the
prior approval of the Holders of a Majority in Liquidation Amount of the
Preferred Securities.
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Section 7.2. Amendments.
Except with respect to any changes that do not adversely affect the rights
of the Trust and of the Holders in any material respect (in which case no
consent of the Holders will be required), this Parent Guarantee Agreement may
only be amended with the prior approval of the Parent Guarantor, the Guarantee
Trustee, the Trust and the Holders of not less than a Majority in Liquidation
Amount of the Preferred Securities. The provisions of Article VI of the Trust
Agreement (as defined in the Indenture) concerning meetings or consents of the
Holders shall apply to the giving of such approval.
Section 7.3. Notices.
Any notice, request or other communication required or permitted to be given
hereunder shall be in writing, duly signed by the party giving such notice, and
delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Parent Guarantor, to the address or facsimile
number set forth below or such other address, facsimile number or to the
attention of such other Person as the Parent Guarantor may give notice to
the Guarantee Trustee and the Holders:
Orleans Homebuilders, Inc.
One Greenwood Square
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Chief Financial Officer
(b) if given to the Trust, at the address or facsimile number set forth
below or such other address, facsimile number or to the attention of such
other Person as the Trust may give notice to the Guarantee Trustee and the
Holders:
Orleans Homebuilders Trust II
One Greenwood Square
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Chief Financial Officer
(c) if given to the Company, at the address or facsimile number set
forth below or such other address, facsimile number or to the attention of
such other Person as the Company may give notice to the Guarantee Trustee
and the Holders:
OHI Financing, Inc.
Xxx Xxxxxxxxx Xxxxxx
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Chief Financial Officer
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(d) if given to the Guarantee Trustee, at the address or facsimile
number set forth below or such other address, facsimile number or to the
attention of such other Person as the Guarantee Trustee may give notice to
the Parent Guarantor and the Holders:
JPMorgan Chase Bank, National Association
000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Worldwide Securities Services---Orleans Homebuilders
Trust II
(e) if given to any Note Holder, at the address set forth on the books
and records of the Trustee (as defined in the Indenture), and if to any
Holder, at the address set forth in the books and records of the Trust.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
Section 7.4. Benefit.
This Parent Guarantee Agreement is solely for the benefit of the Trust, the
Note Holders and the Holders and is not separately transferable from the Notes.
Section 7.5. Governing Law.
THIS PARENT GUARANTEE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH PARTY
HERETO, SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
Section 7.6. Submission to Jurisdiction.
ANY LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH
RESPECT TO OR ARISING OUT OF THIS PARENT GUARANTEE AGREEMENT MAY BE BROUGHT IN
OR REMOVED TO THE COURTS OF THE STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW
YORK, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK
(IN EACH CASE SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY
OF THIS PARENT GUARANTEE AGREEMENT, EACH PARTY ACCEPTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS (AND COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS
ARISING OUT OF OR IN CONNECTION WITH THIS PARENT GUARANTEE AGREEMENT.
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Section 7.7. Counterparts.
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 7.8. The Indenture.
Each of the parties hereto hereby acknowledges that it is familiar with the
terms of the Indenture. The Indenture shall be deemed to be specifically
described in this Parent Guarantee Agreement.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE AND
OWNERSHIP OF THE COMPANY
Section 8.1. Parent Guarantor May Consolidate, etc., Only on Certain Terms.
The Parent Guarantor shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and no Person shall consolidate with or merge into
the Parent Guarantor or convey, transfer or lease its properties and assets
substantially as an entirety to the Parent Guarantor, unless:
(a) if the Parent Guarantor shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the entity formed by such
consolidation or into which the Parent Guarantor is merged or the Person
that acquires by conveyance or transfer, or that leases, the properties and
assets of the Parent Guarantor substantially as an entirety shall be an
entity organized and existing under the laws of the United States of
America or any State or Territory thereof or the District of Columbia
unless otherwise approved by Holders of a Majority Liquidation Amount of
the Preferred Securities and shall expressly assume, in writing, executed
and delivered to the Guarantee Trustee, in form reasonably satisfactory to
the Guarantee Trustee, the due and punctual payment of the Parent Guarantee
Payments required hereunder and the performance of every covenant and
obligation of the Parent Guarantor to be performed under this Parent
Guarantee Agreement on the part of the Parent Guarantor to be performed or
observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would
constitute an Event of Default, shall have happened and be continuing; and
(c) the Parent Guarantor has delivered to the Guarantee Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a written
agreement evidencing any assignment or assumption is required in connection
with such transaction, any such agreement complies with this Article IX and
that all conditions precedent herein provided for relating to such
transaction have been complied with; and the Trustee may rely upon such
Officers' Certificate and Opinion of Counsel as conclusive evidence that
such transaction complies with this Section 8.1.
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Section 8.2. Dividends, Distributions and Payments.
So long as any Notes or Preferred Securities remain outstanding, if there
shall have occurred and be continuing an Event of Default hereunder or an
"Event of Default" under the Indenture, then the Parent Guarantor shall not (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Guarantor's Equity
Interests (as defined in the Indenture), (ii) vote in favor of or permit or
otherwise allow any of the subsidiaries to declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to or otherwise retire, any shares of any such subsidiary's
preferred stock or other Equity Interests entitling the holders thereof to a
stated rate of return (for the avoidance of doubt, whether such preferred stock
or other Equity Interests are perpetual or otherwise), or (iii) allow the
Company to make any payment of principal of or any interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Company that rank
pari passu in all respects with or junior in interest to the Notes, except with
respect to pari passu debt, payments made on a pari passu basis with payments
made with respect to the Notes, other than, in the case of (i) and (ii) (A)
repurchases, redemptions or other acquisitions of shares of capital stock or
other Equity Interests of the Parent Guarantor or any subsidiary in connection
with any employment contract, benefit plan or other similar arrangement with or
for the benefit of any one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or stockholder stock
purchase plan (or similar equity purchase plan) or in connection with the
issuance of capital stock or other Equity Interests of the Parent Guarantor or
any subsidiary (or securities convertible into or exercisable for such capital
stock or Equity Interests) as consideration in an acquisition transaction
entered into prior to the applicable Event of Default, (B) as a result of an
exchange or conversion of any class or series of the capital stock or Equity
Interests of the Parent Guarantor or any subsidiary for any class or series of
the capital stock or Equity Interests of the Parent Guarantor or any subsidiary
or of any class or series of the indebtedness of the Parent Guarantor or any
subsidiary for any class or series of the capital stock or other Equity
Interests of the Parent Guarantor or any subsidiary, (C) the purchase of
fractional interests in shares of the capital stock or other Equity Interests
of the Parent Guarantor or any subsidiary pursuant to the conversion or
exchange provisions of such capital stock, other Equity Interests or the
security being converted or exchanged, (D) any declaration of a dividend in
connection with any Rights Plan, the issuance of rights, stock or other
property under any Rights Plan or the redemption or repurchase of rights
pursuant thereto, or (E) any dividend in the form of stock, Equity Interests,
warrants, options or other rights where the dividend stock or Equity Interests
or the stock or Equity Interests issuable upon exercise of such warrants,
options or other rights is the same stock as that on which the dividend is
being paid or ranks pari passu with or junior to such stock.
Section 8.3. Successor Company Substituted
Upon any consolidation or merger by the Parent Guarantor with or into any
other Person, or any conveyance, transfer or lease by the Parent Guarantor of
its properties and assets substantially as an entirety to any Person in
accordance with Section 8.1 and the execution and delivery to the Trustee of
the written agreement described in Section 8.1(a), the successor entity formed
by such consolidation or into which the Parent Guarantor is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Parent Guarantor under this
Parent Guarantee Agreement with the same effect as if such successor Person had
been named as the Parent Guarantor herein; and in the event of any such
conveyance, or transfer, or lease following the execution and delivery of
19
such written agreement, the Parent Guarantor shall be discharged from all
obligations and covenants under the Parent Guarantee Agreement and the Notes.
Section 8.4. Ownership of the Company.
At all times while this Parent Guarantee Agreement is in effect and while
any of the obligations of the Parent Guarantor hereunder remain outstanding,
one hundred percent (100%) of the outstanding capital stock of the Company
shall be owned by the Parent Guarantor.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
Section 9.1. Representations and Warranties of Parent Guarantor.
The Parent Guarantor hereby represents and warrants for the benefit of the
Note Holders and the Holders that:
(a) the Parent Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of Delaware.
(b) the Parent Guarantor has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Parent
Guarantee Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Parent Guarantee
Agreement;
(c) this Parent Guarantee Agreement has been duly authorized, executed
and delivered by the Parent Guarantor and constitutes the legal, valid and
binding agreement of the Parent Guarantor enforceable against the Parent
Guarantor in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to
general principles of equity;
(d) the execution, delivery and performance of this Parent Guarantee
Agreement have been duly authorized by all necessary corporate or other
action on the part of the Parent Guarantor and do not require any approval
of stockholders of the Parent Guarantor and such execution, delivery and
performance will not (i) violate the articles or certificate of
incorporation or by-laws (or other organizational documents) of the Parent
Guarantor or (ii) violate any applicable law, governmental rule or
regulation governing the Parent Guarantor, any material agreement to which
it is a party or any material portion of its property or any order,
judgment or decree applicable to the Company or the Parent Guarantor,
respectively, or any material portion of its property;
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this Parent Guarantee
Agreement as of the date first above written.
ORLEANS HOMEBUILDERS, INC.
By: XXXXXXX X. XXXXX
-------------------
Name: Xxxxxxx X. Xxxxx
Title: President and COO
OHI FINANCING, INC.
By: XXXXXX X. XXXXXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: VP, Secretary and Treasurer
ASSOCIATION, as Guarantee Trustee
By: XXXXXX X. XXXXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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