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EXHIBIT 4.1
TOLL BROTHERS FINANCE CORP., as Issuer
TOLL BROTHERS, INC., as a Guarantor, and
THE OTHER GUARANTORS PARTY HERETO
Senior Debt Securities
______________________
Indenture
Dated as of November 22, 2002
______________________
BANK ONE TRUST COMPANY, N.A., as Trustee
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CROSS-REFERENCE TABLE
This Cross-Reference Table is not a part of the Indenture.
____________________
TIA Indenture
Section Section
310(a)(1)........................................................................... 7.09; 7.10
(a)(2)........................................................................... 7.10
(a)(3)........................................................................... N.A.
(a)(4)........................................................................... N.A.
(a)(5)........................................................................... N.A.
(b).............................................................................. 7.08; 7.10; 12.02; 12.14
(c).............................................................................. N.A.
311(a).............................................................................. 7.11
(b).............................................................................. 7.11
(b)(1)........................................................................... 7.10
(c).............................................................................. N.A.
312(a).............................................................................. 2.05
(b).............................................................................. 2.05; 12.03
(c).............................................................................. 12.03
313(a).............................................................................. 7.06
(b)(1)........................................................................... N.A.
(b)(2)........................................................................... 7.06
(c).............................................................................. 7.06
(d).............................................................................. 7.06
314(a).............................................................................. 4.03; 7.06; 12.02
(b).............................................................................. N.A.
(c)(1)........................................................................... 12.04
(c)(2)........................................................................... 12.04
(c)(3)........................................................................... N.A.
(d).............................................................................. N.A.
(e).............................................................................. 12.05
(f).............................................................................. N.A.
315(a).............................................................................. 7.01(b)
(b).............................................................................. 7.05; 12.02
(c).............................................................................. 7.01(a)
(d).............................................................................. 7.01(c)
(e).............................................................................. 6.11
316(a)(last sentence)............................................................... 12.06
(a)(1)(A)........................................................................ 6.05
(a)(1)(B)........................................................................ 6.04
(a)(2)........................................................................... N.A.
(b).............................................................................. 6.07
(c)..............................................................................
317(a)(1)........................................................................... 6.08
(a)(2)........................................................................... 6.09
(b).............................................................................. 2.04
318(a).............................................................................. 12.01
___________________________
N.A. means Not Applicable.
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TABLE OF CONTENTS
This Table of Contents is not a part of the Indenture.
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ARTICLE ONE
Definitions and Incorporation by Reference
Section 1.01. Definitions..........................................................................1
Section 1.02. Other Definitions....................................................................8
Section 1.03. Incorporation by Reference of Trust Indenture Act....................................8
Section 1.04. Rules of Construction................................................................9
ARTICLE TWO
The Securities
Section 2.01. Form and Dating......................................................................9
Section 2.02. Execution and Authentication........................................................12
Section 2.03. Registrar and Paying Agent..........................................................13
Section 2.04. Paying Agent to Hold Money in Trust.................................................13
Section 2.05. Holder Lists........................................................................13
Section 2.06. Transfer and Exchange...............................................................14
Section 2.07. Replacement Securities..............................................................14
Section 2.08. Outstanding Securities..............................................................15
Section 2.09. Temporary Securities................................................................15
Section 2.10. Cancellation........................................................................16
Section 2.11. Defaulted Interest..................................................................16
Section 2.12. Treasury Securities.................................................................16
Section 2.13. CUSIP Numbers.......................................................................16
Section 2.14. Deposit of Moneys...................................................................17
Section 2.15. Book-Entry Provisions for Global Security...........................................17
Section 2.16. Restrictive Legends.................................................................19
Section 2.17. Special Transfer Provisions.........................................................20
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ARTICLE THREE
Redemption
Section 3.01. Notices to Trustee..................................................................22
Section 3.02. Selection of Securities to be Redeemed..............................................23
Section 3.03. Notice of Redemption................................................................23
Section 3.04. Effect of Notice of Redemption......................................................24
Section 3.05. Deposit of Redemption Price.........................................................24
Section 3.06. Securities Redeemed in Part.........................................................24
ARTICLE FOUR
Covenants
Section 4.01. Payment of Securities...............................................................25
Section 4.02. Maintenance of Office or Agency.....................................................25
Section 4.03. Compliance Certificate..............................................................25
Section 4.04. Additional Guarantors...............................................................25
Section 4.05. Reports.............................................................................26
ARTICLE FIVE
Successor Corporation
Section 5.01. When the Issuer or the Guarantors May Merge, etc....................................27
ARTICLE SIX
Defaults and Remedies
Section 6.01. Events of Default...................................................................28
Section 6.02. Acceleration........................................................................30
Section 6.03. Other Remedies......................................................................31
Section 6.04. Waiver of Past Defaults.............................................................31
Section 6.05. Control by Majority.................................................................31
Section 6.06. Limitation on Suits.................................................................32
Section 6.07. Rights of Holders to Receive Payment................................................32
Section 6.08. Collection Suit by Trustee..........................................................32
Section 6.09. Trustee May File Proofs of Claim....................................................33
Section 6.10. Priorities..........................................................................33
Section 6.11. Undertaking for Costs...............................................................33
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ARTICLE SEVEN
Trustee
Section 7.01. Duties of Trustee...................................................................34
Section 7.02. Rights of Trustee...................................................................35
Section 7.03. Individual Rights of Trustee........................................................36
Section 7.04. Trustee's Disclaimer................................................................36
Section 7.05. Notice of Defaults..................................................................36
Section 7.06. Reports by Trustee to Holders.......................................................37
Section 7.07. Compensation and Indemnity..........................................................37
Section 7.08. Replacement of Trustee..............................................................38
Section 7.09. Successor Trustee by Merger, etc....................................................38
Section 7.10. Eligibility; Disqualification.......................................................39
Section 7.11. Preferential Collection of Claims Against the Issuer................................39
ARTICLE EIGHT
Discharge of Indenture
Section 8.01. Defeasance upon Deposit of Moneys or U.S. Government Obligations....................39
Section 8.02. Survival of the Issuer's Obligations................................................42
Section 8.03. Application of Trust Money..........................................................42
Section 8.04. Repayment to the Issuer.............................................................43
Section 8.05. Reinstatement.......................................................................43
ARTICLE NINE
Guarantees
Section 9.01. Unconditional Guarantees............................................................44
Section 9.02. Severability........................................................................45
Section 9.03. Release of a Guarantor..............................................................45
Section 9.04. Limitation of a Guarantor's Liability...............................................46
Section 9.05. Contribution........................................................................46
Section 9.06. Waiver of Subrogation...............................................................47
Section 9.07. Execution of Guarantee..............................................................47
ARTICLE TEN
Amendments, Supplements and Waivers
Section 10.01. Without Consent of Holders..........................................................48
Section 10.02. With Consent of Holders.............................................................49
Section 10.03. Compliance with Trust Indenture Act.................................................50
Section 10.04. Revocation and Effect of Consents...................................................51
Section 10.05. Notation on or Exchange of Securities...............................................51
Section 10.06. Trustee to Sign Amendments, etc.....................................................52
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ARTICLE ELEVEN
Conversion of Securities
Section 11.01. Applicability of Article............................................................52
Section 11.02. Conversion Privilege................................................................52
Section 11.03. Manner of Exercise of Conversion Privilege..........................................53
Section 11.04. Payment in Lieu of Fractional Shares................................................54
Section 11.05. Adjustment of Conversion Price......................................................54
Section 11.06. Notice of Certain Corporate Action..................................................57
Section 11.07. Company to Provide Stock............................................................57
Section 11.08. Taxes on Conversions................................................................58
Section 11.09. Covenant as to Stock................................................................58
Section 11.10. Consolidation or Merger.............................................................59
Section 11.11. Disclaimer of Responsibility for Certain Matters....................................59
ARTICLE TWELVE
Miscellaneous
Section 12.01. Trust Indenture Act Controls........................................................60
Section 12.02. Notices.............................................................................60
Section 12.03. Communications by Holders with
Other Holders...................................................................62
Section 12.04. Certificate and Opinion as to
Conditions Precedent............................................................62
Section 12.05. Statements Required in Certificate or Opinion.......................................62
Section 12.06. Rules by Trustee and Agents.........................................................63
Section 12.07. Legal Holidays......................................................................63
Section 12.08. Governing Law.......................................................................63
Section 12.09. No Adverse Interpretation of Other Agreements.......................................63
Section 12.10. No Recourse Against Others..........................................................63
Section 12.11. Successors and Assigns..............................................................63
Section 12.12. Duplicate Originals.................................................................64
Section 12.13. Severability........................................................................64
Section 12.14. Counterparts........................................................................64
SIGNATURES........................................................................................... S-1
EXHIBIT A - Form of Security
EXHIBIT B - Form of Exchange Security and Private Exchange Security
EXHIBIT C - Form of Certificate to be Delivered in Connection with Transfers to Non-QIB Accredited
Investors
EXHIBIT D - Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S
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INDENTURE dated as of November 22, 2002, by and among TOLL BROTHERS
FINANCE CORP., a Delaware corporation (the "Issuer"), TOLL BROTHERS, INC., a
Delaware corporation (the "Company") and the other Guarantors (as defined in
Section 1.01) and BANK ONE TRUST COMPANY, N.A. (the "Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Issuer's debt securities
issued under this Indenture:
ARTICLE ONE
Definitions and Incorporation by Reference
Section 1.01. Definitions.
"Additional Interest" has the meaning set forth in paragraph 7 of the
Security.
"Affiliate" means, when used with reference to a specified person, any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Person specified.
"Agent" means any Registrar, Paying Agent or co-Registrar or agent for
service of notices and demands.
"Authorizing Resolution" means a resolution adopted by the Board of
Directors, or by an Officer or committee of Officers pursuant to Board of
Directors delegation, authorizing a Series of Securities.
"Bank Credit Facilities" means the Revolving Bank Credit Facility and
the Bank Term Loan.
"Bank Term Loan" means the Term Loan agreement by and among First
Huntingdon Finance Corp., the Company and the lenders that are party thereto,
dated July 25, 2000, as amended, and any related documents (including, without
limitation, any guarantees or security documents), as such agreements (and such
related documents) may be amended, restated, supplemented, renewed, replaced by
the existing lenders or by successors or otherwise modified from time to time,
including any agreement(s) extending the maturity of or refinancing or refunding
all or any portion of the indebtedness or increasing the amount to be borrowed
under such agreements or any successor agreement(s), whether or not by or among
the same parties.
"Bankruptcy Law" means title 11 of the United States Code, as amended,
or any similar federal or state law for the relief of debtors.
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"Board of Directors" means any Person's Board of Directors or any
authorized committee thereof.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of or in
such Person's capital stock or other equity interests, and options, rights or
warrants to purchase such capital stock or other equity interests, whether now
outstanding or issued after the applicable Issue Date, including, without
limitation, all Redeemable Capital Stock and Preferred Stock.
"Capitalized Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such obligations will be the capitalized amount thereof determined in
accordance with GAAP.
"Common Stock" means the Common Stock ($.01 par value) of the Company
as the same exists at the date of this Indenture as originally executed or as
such stock may be constituted from time to time.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to the Indenture and thereafter means the
successor.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person determined in accordance with accounting
principles generally accepted in the United States.
"Conversion Price" means the initial conversion price of Securities of
a Series specified in the Authorizing Resolutions establishing the terms of such
Series of Security, as adjusted in accordance with the provisions of Article
Eleven.
"Current Market Price" means, for any relevant date, (a) except for
purposes of Section 11.04, the average of the last reported sale prices of the
Common Stock for the 30 consecutive Business Days commencing 45 Business Days
before the day in question and (b) for purposes of Section 11.04 only, the last
reported sale price of the Common Stock, in either such case as reported on the
composite tape, or similar reporting system, for issues listed on the New York
Stock Exchange (or if the Common Stock is not then listed on that exchange, for
issues listed on such other national securities exchange upon which the Common
Stock is listed as may be designated by the Board of Directors for the purposes
hereof) or, if there is no such reported sale on the day or days in question, on
the basis of the average of the closing bid and asked quotations as so reported,
or, if the Common Stock is not listed on any national securities exchange, on
the basis of the average of the high bid and low asked quotations on the day or
days in question in the over-the-counter market as reported by the National
Association of Securities Dealers' Automated Quotations System, or if not so
quoted, as reported by National Quotation Bureau, Incorporated, or any similar
organization, or if not so reported as determined in good faith by the Board of
Directors.
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"Default" means any event, act or condition that is, or after notice or
the passage of time or both would be, an Event of Default.
"Exchange Securities" means the series B Securities to be issued under
this Indenture in exchange for Initial Securities pursuant to a Registration
Rights Agreement.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, as in effect at the time of computation.
"Guarantee" means the guarantee of Securities of any applicable Series
by each Guarantor under this Indenture.
"Guarantors" means, (i) initially on the execution of this Indenture,
each of the entities listed on Schedule A, attached hereto, and (ii) each of the
Company's Subsidiaries which becomes a guarantor of Securities pursuant to the
provisions of this Indenture, in each case subject to Section 9.03(a).
"Holder" means the Person in whose name a Security is registered on the
Registrar's books.
"Indebtedness" means (1) any liability of any Person (A) for borrowed
money, (B) evidenced by a bond, note, debenture or similar instrument (including
a purchase money obligation) given in connection with the acquisition of any
businesses, properties or assets of any kind (other than a trade payable or a
current liability arising in the ordinary course of business), (C) for the
payment of money relating to a Capitalized Lease Obligation or (D) for all
Redeemable Capital Stock valued at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends; (2) any liability of
others described in the preceding clause (1) that such Person has guaranteed or
that is otherwise its legal liability; and (3) all Indebtedness referred to in
(but not excluded from) clauses (1) and (2) above of other Persons of all
dividends of other Persons, the payment of which is secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Security Interest upon or in property (including, without
limitation, accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness;
and (4) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (1), (2) and (3)
above.
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"Indenture" means this Indenture as amended or supplemented from time
to time, including pursuant to any Authorizing Resolution or supplemental
indenture pertaining to any Series.
"Initial Purchasers" means the initial purchasers named in a purchase
agreement, as initial purchasers of the series A Securities in an offering of
such Securities.
"Initial Securities" means the series A Securities issued under this
Indenture.
"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, who are not also QIBs.
"interest" means, with respect to any Series of Securities, the sum of
any interest and any Additional Interest on such series of Securities.
"Interest Payment Date" when used with respect to any installment of
interest payable on the Securities, has the meaning provided in Section 1 of the
Securities.
"Issue Date" means, with respect to any Series of Securities, the date
on which the Securities of such Series are originally issued under this
Indenture.
"Lien" means, with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this definition, a Person shall be deemed to own,
subject to a Lien, any Property which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such Property.
"Non-Recourse Indebtedness" means the Indebtedness or other obligations
secured by a Lien on property to the extent that the liability of the
Indebtedness or other obligations is limited to the security of the property
without liability on the part of the Issuer, the Company or any Restricted
Subsidiary (other than the Restricted Subsidiary which holds title to the
property) for any deficiency.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Chief Accounting Officer, the Controller, the Treasurer, or the
Secretary of the Issuer or any Guarantor, as applicable.
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"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or an Assistant Secretary of the Issuer
or the Company, as applicable.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Issuer, the Company, a Guarantor, Subsidiary or the Trustee, as
applicable.
"Original Issue Discount Security" means any Security which provides
that an amount less than its principal amount is due and payable upon
acceleration after an Event of Default.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, incorporated or unincorporated association,
joint stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Preferred Stock" of any Person means all Capital Stock of such Person
which has a preference in liquidation or with respect to the payment of
dividends.
"principal" of a debt security means the principal of the security
plus, when appropriate, the premium, if any, on the security.
"Private Exchange" means the offer by the Issuer, pursuant to the
Registration Rights Agreement, to the Initial Purchasers to issue and deliver to
the Initial Purchasers, in exchange for the Initial Securities held by the
Initial Purchasers, as part of their initial distribution, a like aggregate
principal amount of Private Exchange Securities.
"Private Exchange Securities" means the series B Securities to be
issued pursuant to this Indenture to the Initial Purchasers in a Private
Exchange.
"Private Placement Legend" means the legend set forth on the Initial
Securities in the form set forth in Section 2.16.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person, whether or not included in
the most recent consolidated balance sheet of such Person and its Subsidiaries
under GAAP.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Record Date" for the interest payable on any Interest Payment Date on
the Securities has the meaning provided in Section 2 of the Securities.
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"Redeemable Capital Stock" means any Capital Stock of the Issuer, the
Company of any Subsidiary of the Company that, either by its terms, by the terms
of any security into which it is convertible or exchangeable or otherwise, (1)
is or upon the happening of an event or passage of time would be required to be
redeemed on or prior to the final stated maturity of any series of Securities or
(2) is redeemable at the option of the holder thereof at any time prior to such
final stated maturity or (3) is convertible into or exchangeable for debt
securities at any time prior to such final stated maturity.
"Registration Rights Agreement" means, with respect to any issuance of
Initial Securities under this Indenture, the registration rights agreement
entered into among the Issuer, the Company and the Initial Purchasers of such
Initial Securities.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Security" has the meaning assigned to "Restricted Security"
in Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee
shall be entitled to request and conclusively rely on an Opinion of Counsel with
respect to whether any Security constitutes a Restricted Security.
"Restricted Subsidiary" means any Guarantor other than the Company.
"Revolving Bank Credit Facility" means the Amended and Restated Credit
Agreement by and among First Huntingdon Finance Corp., the Company and the
lenders party thereto, dated May 18, 2001, as amended, and any related documents
(including, without limitation, any guarantees or security documents), as such
agreements (and such related documents) may be amended, restated, supplemented,
renewed, replaced by the existing lenders or by successors or otherwise modified
from time to time, including any agreement(s) extending the maturity of or
refinancing or refunding all or any portion of the indebtedness or increasing
the amount to be borrowed under such agreement(s) or any successor agreement(s),
whether or not by or among the same parties.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission or any successor
agency performing the duties now assigned to it under the TIA.
"Securities" means the Initial Securities, the Exchange Securities and
the Private Exchange Securities, treated as a single Series, issued under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Series" means a series of Securities established under this Indenture.
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"Significant Subsidiary" means any Subsidiary (i) whose revenues exceed
10% of the Company's total revenues, in each case for the most recent fiscal
year, or (ii) whose net worth exceeds 10% of the Company's total stockholders'
equity, in each case as of the end of the most recent fiscal year.
"Subsidiary" means any Person of which the Company, at the time of
determination by the Company, directly and/or indirectly through one or more
Subsidiaries, owns more than 50% of the shares of Voting Stock.
"TIA" means the Trust Indenture Act of 1939, as in effect from time to
time.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor serving hereunder.
"Trust Officer" means the Chairman of the Board, the President, any
Vice President or any other officer or assistant officer of the Trustee assigned
by the Trustee to administer its corporate trust matters.
"United States" means the United States of America.
"U.S. government obligations" means securities which are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case are not callable or redeemable at the
option of the issuer thereof, and shall also include a depositary receipt issued
by a bank or trust company as custodian with respect to any such U.S. government
obligations or a specific payment of interest on or principal of any such U.S.
government obligation held by such custodian for the account of the holder of a
depositary receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of
the U.S. government obligation or the specific payment of interest on or
principal of the U.S. government obligation evidenced by such depositary
receipt.
"Voting Stock" means any class or classes of capital stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
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Section 1.02. Other Definitions.
Defined in
Term Section
---- -----------
"Agent Members"................................................................................ 2.15
"Business Day"................................................................................. 12.07
"Custodian".................................................................................... 6.01
"Depository"................................................................................... 2.15
"Event of Default"............................................................................. 6.01
"Global Securities"............................................................................ 2.01(c)
"Legal Holiday"................................................................................ 12.07
"Outstanding Series"........................................................................... 6.01
"Paying Agent"................................................................................. 2.03
"Physical Securities".......................................................................... 2.01(c)
"Private Placement Legend"..................................................................... 2.16
"Registrar".................................................................................... 2.03
"Required Filing Date"......................................................................... 4.05
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuer, the Guarantors
or any other obligor on the Securities of a Series or any Guarantees thereof.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings so assigned to them.
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Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE TWO
The Securities
Section 2.01. Form and Dating.
(a) The aggregate principal amount of Securities that may be issued
under this Indenture is unlimited. The Securities may be issued from time to
time in one or more Series. Each Series shall be created by an Authorizing
Resolution or a supplemental indenture that establishes the terms of the Series,
which may include the following:
(1) the title of the Series;
(2) the aggregate principal amount (or any limit on the aggregate
principal amount) of the Series and, if any Securities of a Series
are to be issued at a discount from their face amount, the method
of computing the accretion of such discount;
(3) the interest rate or method of calculation of the interest rate;
(4) the date from which interest will accrue;
(5) the Record Dates for interest payable on Securities of the Series;
(6) the dates when, places where and manner in which principal and
interest are payable;
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(7) the Registrar and Paying Agent;
(8) the terms of any mandatory (including any sinking fund
requirements) or optional redemption by the Company;
(9) the terms of any redemption at the option of Holders;
(10) the denominations in which Securities are issuable;
(11) whether Securities will be issued in registered or bearer form and
the terms of any such forms of Securities;
(12) whether any Securities will be represented by a Global Security
and the terms of any such Global Security;
(13) the currency or currencies (including any composite currency) in
which principal or interest or both may be paid;
(14) if payments of principal or interest may be made in a currency
other than that in which Securities are denominated, the manner
for determining such payments;
(15) provisions for electronic issuance of Securities or issuance of
Securities in uncertificated form;
(16) any Events of Default, covenants and/or defined terms in addition
to or in lieu of those set forth in this Indenture;
(17) whether and upon what terms Securities may be defeased if
different from the provisions set forth in this Indenture;
(18) the form of the Securities, which, unless the Authorizing
Resolution or supplemental indenture otherwise provides, shall be
in the form of Exhibit A or Exhibit B;
(19) any terms that may be required by or advisable under applicable
law;
(20) the percentage of the principal amount of the Securities which is
payable if the maturity of the Securities is accelerated in the
case of Securities issued at a discount from their face amount;
(21) whether any Securities will not have Guarantees;
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(22) whether the Securities of such Series will be convertible into
Common Stock of the Company and the terms thereof (including
without limitation the conversion price, the conversion period and
any other provision in addition to or in lieu of those set forth
in this Indenture);
(23) whether the Securities of such Series and/or the Guarantees of
such Series will be secured and, if applicable any provisions for
securing all or a portion of any indebtedness evidenced by the
Securities of such Series and/or the Guarantees of such Series;
and
(24) any other terms in addition to or different from those contained
in this Indenture.
All Securities of one Series need not be issued at the same time and,
unless otherwise provided, a Series may be reopened for issuances of additional
Securities of such Series pursuant to an Authorizing Resolution, an Officers'
Certificate of the Issuer or in any indenture supplemental hereto.
The creation and issuance of a Series and the authentication and
delivery thereof are not subject to any conditions precedent.
(b) The Initial Securities and the Trustee's certificate of
authentication relating thereto shall be substantially in the form of Exhibit A
hereto. The Exchange Securities, the Private Exchange Securities and the
Trustee's certificate of authentication relating thereto shall be substantially
in the form of Exhibit B hereto. The Securities may have notations, legends or
endorsements required by law, stock exchange rules, agreements to which the
Company is subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). Each Security shall be
dated the date of its authentication. If required, the Securities may bear the
appropriate legend regarding any original issue discount for federal income tax
purposes. Each Security shall have an executed Guarantee from each of the
Guarantors.
The terms and provisions contained in the Securities, annexed hereto as
Exhibits A and B, shall constitute, and are hereby expressly made, a part of
this Indenture and, to the extent applicable, the Issuer, the Guarantors and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
(c) Global Securities. The Securities offered and sold (1) in reliance
on Rule 144A, (2) in reliance on Regulation S and (3) to a limited number of
Institutional Accredited Investors in a transaction exempt from the registration
requirements of the Securities Act shall be issued initially in the form of one
or more permanent Global Securities ("Global Securities") in definitive, fully
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registered form without interest coupons, in substantially the form of Exhibit
A, which shall be deposited on behalf of the purchasers of the Securities
represented thereby with the Trustee, at the Trustee's office in New York City,
as custodian for the Depository, and registered in the name of the Depository or
a nominee of the Depository, duly executed by the Company (and having an
executed Guarantee in the manner set forth in Section 9.07) and authenticated by
the Trustee as hereinafter provided and shall bear the legend set forth in
Section 2.16. The aggregate principal amount of the Global Securities may from
time to time be increased or decreased by adjustments made on the records of the
Trustee and the Depository or its nominee in the limited circumstances
hereinafter provided.
Securities issued in exchange for interests in Global Securities
pursuant to Section 2.15 may be issued in the form of permanent certificated
Securities in registered form in substantially the form set forth in Exhibit A
(the "Physical Securities").
Section 2.02. Execution and Authentication.
Two Officers shall sign the Securities for the Issuer by manual or
facsimile signature. The Issuer's seal shall be reproduced on the Securities.
Each of the Guarantors shall execute the Guarantee in the manner set forth in
Section 9.07.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall
nevertheless be valid.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue upon a
written order of the Issuer signed by two Officers or by an Officer and an
Assistant Treasurer of the Issuer. Each Security shall be dated the date of its
authentication. In authenticating Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to the TIA) shall be fully
protected in relying upon, an Opinion of Counsel stating that all conditions
precedent to the authentication and delivery of the Securities have been
complied with and that the Securities have been duly executed and, when the
Securities have been duly authenticated and delivered by the Trustee, will be
duly issued and delivered and will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, subject
to any applicable bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and subject to the
effect of general principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing (regardless of
whether enforcement is considered in a proceeding in equity or at law).
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Section 2.03. Registrar and Paying Agent.
The Issuer shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange or, if applicable, for
conversion ("Registrar"), and an office or agency where Securities may be
presented for payment ("Paying Agent") and an office or agency where notices and
demands to or upon the Issuer in respect of the Securities and this Indenture
may be served. Such office may be the same office as the Issuer's office
referred to in Section 12.02. The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Issuer may have one or more
co-Registrars and one or more additional paying agents. The term "Paying Agent"
includes any additional paying agent.
The Issuer shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Issuer shall
promptly notify the Trustee in writing of the name and address of any such Agent
and the Trustee shall have the right to inspect the Securities register at all
reasonable times to obtain copies thereof, and the Trustee shall have the right
to rely upon such register as to the names and addresses of the Holders and the
principal amounts and certificate numbers thereof. If the Issuer fails to
maintain a Registrar or Paying Agent or fails to give the foregoing notice, the
Trustee shall act as such.
The Issuer initially appoints the Trustee as Registrar and Paying
Agent.
Section 2.04. Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of Holders and
the Trustee all money held by the Paying Agent for the payment of principal of
or interest on the Securities, and shall notify the Trustee of any Default by
the Issuer in making any such payment. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate the money and hold it as a separate trust fund.
The Issuer at any time may require a Paying Agent to pay all money held by it to
the Trustee. Upon doing so the Paying Agent shall have no further liability for
the money.
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
Holders. If the Trustee is not the Registrar, the Issuer shall furnish to the
Trustee on or 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 as the
Trustee may reasonably require of the names and addresses of Holders.
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Section 2.06. Transfer and Exchange.
Where a Security is presented to the Registrar or a co-Registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of Section 8-401(1) of the New York Uniform
Commercial Code are met. Where Securities are presented to the Registrar or a
co-Registrar with a request to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. To permit transfers and exchanges,
the Trustee shall authenticate Securities at the Registrar's request. The
Registrar need not transfer or exchange any Security selected for redemption,
except the unredeemed part thereof if the Security is redeemed in part, or
transfer or exchange any Securities for a period of 15 days before a selection
of Securities to be redeemed. Any transfer or exchange shall be without charge,
except that the Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any such
transfer or exchange and any other expenses in connection therewith) except in
the case of exchanges pursuant to Sections 2.09, 3.06, or 10.05 not involving
any transfer.
Section 2.07. Replacement Securities.
If the Holder of a Security claims that the Security has been lost,
destroyed, mutilated or wrongfully taken, the Issuer shall issue and, upon
written request of any Officer of the Issuer, the Trustee shall authenticate a
replacement Security, provided that in the case of a lost, destroyed or
wrongfully taken Security, that the requirements of Section 8-405 of the New
York Uniform Commercial Code are met. If any such lost, destroyed, mutilated or
wrongfully taken Security shall have matured or shall be about to mature, the
Issuer may, instead of issuing a substitute Security therefor, pay such Security
without requiring (except in the case of a mutilated Security) the surrender
thereof. An indemnity bond must be sufficient in the judgment of the Issuer and
the Trustee to protect the Issuer, the Trustee or any Agent from any loss which
any of them may suffer if a Security is replaced, including the acquisition of
such Security by a protected purchaser. The Issuer may charge for its expenses
in replacing a Security.
Every replacement Security is an additional obligation of the Issuer
and the Guarantors.
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Section 2.08. Outstanding Securities.
Securities outstanding at any time are all Securities authenticated by
the Trustee except for those presented to it by the Issuer or its designee for
cancellation and those described in this Section as not outstanding. A Security
does not cease to be outstanding because the Issuer, the Guarantors or one of
their Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a protected purchaser.
If the Paying Agent holds on a redemption date or maturity date money
sufficient to pay Securities payable on that date, then on and after that date
such Securities cease to be outstanding and interest on them ceases to accrue.
If a Security is called for redemption or if it matures in less than
six months and if the Issuer has satisfied its obligation to pay the Security,
or if a Security has been converted in accordance with the provisions of Article
Eleven, the Issuer and the Trustee need not treat the Security as outstanding in
determining whether Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent.
For each series of Original Issue Discount Securities, the principal
amount of such Securities that shall be deemed to be outstanding and used to
determine whether the necessary Holders have given any request, demand,
authorization, direction, notice, consent or waiver shall be the principal
amount of such Securities that could be declared to be due and payable upon
acceleration upon an Event of Default as of the date of such determination. When
requested by the Trustee, the Issuer will advise the Trustee of such amount,
showing its computations in reasonable detail.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 2.09. Temporary Securities.
Until definitive Securities are ready for delivery, the Issuer may
prepare and execute, the Guarantors shall endorse the Guarantee thereon, and the
Trustee shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Issuer considers appropriate for temporary Securities. Without unreasonable
delay, the Issuer shall prepare and, upon surrender for cancellation of the
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temporary Security, the Issuer and the Guarantors shall execute and the Trustee
shall authenticate definitive Securities in exchange for temporary Securities.
Until so exchanged, the temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities authenticated
and delivered hereunder.
Section 2.10. Cancellation.
The Issuer at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange,
conversion, redemption or payment. The Trustee and no one else shall cancel and
destroy all Securities surrendered for registration or transfer, exchange,
redemption, paying or cancellation. Unless the Authorizing Resolution so
provides, the Issuer may not issue new Securities to replace Securities that it
has previously paid or delivered to the Trustee for cancellation.
Section 2.11. Defaulted Interest.
If the Issuer defaults in a payment of interest on the Securities, it
shall pay the defaulted interest plus any interest payable on the defaulted
interest (to the extent lawful), if an Event of Default has occurred and is
continuing, to the Persons who are Holders on a subsequent special Record Date.
The Issuer shall fix such special Record Date and a payment date. At least 15
days before such special Record Date, the Issuer shall mail to each Holder a
notice that states the Record Date, the payment date and the amount of defaulted
interest to be paid.
Section 2.12. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any direction, waiver, consent or
notice, Securities owned by the Issuer, the Guarantors or any of their
respective Affiliates shall be considered as though they are not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
which the Trustee actually knows are so owned shall be so considered.
Section 2.13. CUSIP Numbers.
The Issuer in issuing the Securities of any Series may use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders of such Securities; provided
that no representation is hereby deemed to be made by the Trustee as to the
correctness or accuracy of any such CUSIP number printed in the notice or on
such Securities, and that reliance may be placed only on the other
identification numbers printed on such Securities. The Issuer shall promptly
notify the Trustee of any change in any CUSIP number.
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Section 2.14. Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each interest payment date
and maturity date with respect to each Series of Securities, the Issuer shall
have deposited with the Paying Agent in immediately available funds money
sufficient to make cash payments due on such interest payment date or maturity
date, as applicable, in a timely manner which permits the Paying Agent to remit
payment to the Holders on such interest payment date or maturity date, as
applicable.
Section 2.15. Book-Entry Provisions for Global Security.
(a) Any Global Security of a Series initially shall (i) be registered
in the name of the depository who shall be identified in the Authorizing
Resolution or supplemental indenture relating to such Securities (the
"Depository") or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear any required legends.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Security, and the Depository may be treated by the Issuer, the Trustee
and any agent of the Issuer or the Trustee as the absolute owner of the Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.
(b) Transfers of any Global Security shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Security may be
transferred or exchanged for definitive Securities in accordance with the rules
and procedures of the Depository. In addition, definitive Securities shall be
transferred to all beneficial owners in exchange for their beneficial interests
in a Global Security if (i) the Depository notifies the Issuer that it is
unwilling or unable to continue as Depository for the Global Security or, if at
any time, the Depository ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and a successor depository is not
appointed by the Issuer within 90 days of such notice or (ii) an Event of
Default has occurred and is continuing or an event which, with the giving of
notice or lapse of time, or both would constitute an Event of Default with
respect to the Securities and the Registrar has received a request from the
Depository to issue definitive Securities.
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(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more definitive Securities are to
be issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Issuer and the Guarantors shall execute, and the Trustee shall authenticate
and deliver, one or more definitive Securities of like tenor and amount.
(d) In connection with the transfer of an entire Global Security to
beneficial owners pursuant to paragraph (b), the Global Security shall be deemed
to be surrendered to the Trustee for cancellation, and the Issuer and the
Guarantors shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depository in exchange for its
beneficial interest in the Global Security, an equal aggregate principal amount
of definitive Securities of authorized denominations.
(e) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities of such Series.
(f) Each Global Security shall also bear the following legend on the
face thereof:
Unless and until it is exchanged in whole or in part for
securities in definitive form, this security may not be transferred
except as a whole by the depository to a nominee of the depository, or
by any such nominee of the depository, or by the depository or nominee
of such successor depository or any such nominee to a successor
depository or a nominee of such successor depository. Unless this
certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to an issuer
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 is requested by an authorized representative of DTC (and
any payment hereon is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), any transfer, pledge
or other use hereof for value or otherwise by or to any person is
wrongful inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
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Transfers of this global security shall be limited to
transfers in whole, but not in part, to nominees of Cede & Co. or to a
successor thereof or such successor's nominee and transfers of portions
of this global security shall be limited to transfers made in
accordance with the restrictions set forth in Section 2.17 of the
Indenture referred to herein.
Section 2.16. Restrictive Legends.
Each Global Security and Physical Security that constitutes a
Restricted Security or is sold in compliance with Regulation S shall bear the
following legend (the "Private Placement Legend") on the face thereof until
after the second anniversary of the later of the Issue Date and the last date on
which the Company or any Affiliate was the owner of such Security (or any
predecessor note) (or such shorter period of time as permitted by Rule 144(k)
under the Securities Act or any successor provision thereunder), or such longer
period of time as may be required under the Securities Act or applicable state
securities laws in the opinion of counsel for the Issuer, unless otherwise
agreed by the Company and the Holder thereof:
This security has not been registered under the Securities Act
of 1933, as amended (the "Securities Act"), or any state or other
securities laws. Neither this security nor any interest or
participation herein or therein may be reoffered, sold, assigned,
transferred, pledged, encumbered or otherwise disposed of in the
absence of such registration or unless such transaction is exempt from,
or not subject to, the registration requirements of the Securities Act.
By its acquisition hereof, the holder (1) represents that it is a
"qualified institutional buyer" (as defined in Rule 144A ("Rule 144A")
under the Securities Act), (2) agrees not to offer, sell or otherwise
transfer this note prior to (x) the date which is two years (or such
shorter period of time as permitted by Rule 144(k) of the Securities
Act) after the original issue date of the senior notes or (y) such
later date, if any, as may be required by applicable law (the "resale
restriction termination date") except (a) to the Company or any of its
subsidiaries (b) pursuant to a registration statement which has been
declared effective under the Securities Act, (c) for so long as the
senior notes are eligible for resale pursuant to Rule 144A, to a person
it reasonably believes is a "qualified institutional buyer" as defined
in Rule 144A that purchases for its own account or for the account of a
qualified institutional buyer, in each case to whom notice is given
that the transfer is being made in reliance on Rule 144A, (d) to a
non-"U.S. person" in an "offshore transaction" (as such terms are
defined in Regulation S under the Securities Act) in accordance with
Regulation S under the Securities Act (as indicated by the box checked
by the transferor on the certificate of transfer on the reverse of this
security if this security is not in book-entry form), (e) to an
institutional "accredited investor" (as defined in Rule 501 (a)(1),
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(2), (3) or (7) of the Securities Act (an "Institutional Accredited
Investor")) that, prior to such transfer, furnishes the trustee for the
securities a signed letter containing certain representations and
agreements (the form of which can be obtained from the trustee), or (f)
pursuant to another available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing
cases to any requirement of law that the disposition of its property or
the property of such investor account or accounts be at all times
within its or their control, and (3) agrees that it will give to each
person to whom this note is transferred a notice substantially to the
effect of this legend; provided that the Company, and the Trustee shall
have the right prior to any such offer, sale or transfer pursuant to
clause (f) to require the delivery of an opinion of counsel,
certification and/or other information satisfactory to each of them.
This legend will be removed upon the request of the holder after the
resale restriction termination date.
In addition, the Global Security and any certificated notes sold to
Qualified Institutional Buyers pursuant to Rule 144A will contain an additional
legend substantially to the following effect:
Each purchaser of this security is hereby notified that the
seller of this security may be relying on the exemption from the
provisions of Section 5 of the Securities Act provided by Rule 144A.
Section 2.17. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Security constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any Security
constituting a Restricted Security whether or not such Security bears
the Private Placement Legend, if (x) the requested transfer is after
the second anniversary of the Issue Date (provided, however, that
neither the Company nor any Affiliate of the Company has held any
beneficial interest in such Security, or portion thereof, at any time
on or prior to the second anniversary of the Issue Date) or (y) (1) in
the case of a transfer to an Institutional Accredited Investor which is
not a QIB (excluding Non-U.S. Persons), the proposed transferee has
delivered to the Registrar a certificate substantially in the form of
Exhibit C hereto and any legal opinions and certifications required
thereby or (2) in the case of a transfer to a Non-U.S. Person, the
proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit D hereto; and
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(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Security, upon receipt by the
Registrar of (x) the certificate, if any, required by paragraph (i)
above and (y) written instructions given in accordance with the
Depository's and the Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Securities)
a decrease in the principal amount of such Global Security in an amount equal to
the principal amount of the beneficial interest in the Global Security to be
transferred, and (b) the Issuer shall execute, the Guarantors shall execute the
Guarantee on, and the Trustee shall authenticate and deliver, one or more
Physical Securities of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer
is being made by a proposed transferor who has checked the box provided
for on the form of Security stating, or has otherwise advised the
Issuer and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Security stating,
or has otherwise advised the Issuer and the Registrar in writing, that
it is purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that it
and any such account is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer
as it has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in a Global Security, upon
receipt by the Registrar of written instructions given in accordance
with the Depository's and the Registrar's procedures, the Registrar
shall reflect on its books and records the date and an increase in the
principal amount of such Global Security in an amount equal to the
principal amount of the Physical Securities to be transferred, and the
Trustee shall cancel the Physical Securities so transferred.
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(c) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless (i) the requested transfer is after the
second anniversary of the Issue Date (provided, however, that neither the
Company nor any Affiliate of the Company has held any beneficial interest in
such Security, or portion thereof, at any time prior to or on the second
anniversary of the Issue Date), or (ii) there is delivered to the Registrar an
Opinion of Counsel reasonably satisfactory to the Issuer and the Trustee to the
effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act.
(d) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.06 or this Section. The
Issuer shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time during the
Registrar's normal business hours upon the giving of reasonable written notice
to the Registrar.
(e) Transfers of Securities Held by Affiliates. Any certificate (i)
evidencing a Security that has been transferred to an Affiliate of the Company
within two years after the Issue Date, as evidenced by a notation on the
Assignment Form for such transfer or in the representation letter delivered in
respect thereof or (ii) evidencing a Security that has been acquired from an
Affiliate (other than by an Affiliate) in a transaction or a chain of
transactions not involving any public offering, shall, until two years after the
last date on which either the Company or any Affiliate of the Company was an
owner of such Security, in each case, bear a legend in substantially the form
set forth in Section 2.16, unless otherwise agreed by the Issuer (with written
notice thereof to the Trustee).
ARTICLE THREE
Redemption
Section 3.01. Notices to Trustee.
Securities of a Series that are redeemable prior to maturity shall be
redeemable in accordance with their terms and, unless the Authorizing Resolution
or supplemental indenture provides otherwise, in accordance with this Article.
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If the Issuer wants to redeem Securities pursuant to Paragraph 5 of the
Securities, it shall notify the Trustee in writing of the Redemption Date and
the principal amount of Securities to be redeemed. Any such notice may be
canceled at any time prior to notice of such redemption being mailed to Holders.
Any such canceled notice shall be void and of no effect.
If the Issuer wants to credit any Securities previously redeemed,
retired or acquired against any redemption pursuant to Paragraph 6 of the
Securities, it shall notify the Trustee of the amount of the credit and it shall
deliver any Securities not previously delivered to the Trustee for cancellation
with such notice.
The Issuer shall give each notice provided for in this Section at least
10 days before the notice of any such redemption is to be mailed to Holders
(unless a shorter notice shall be satisfactory to the Trustee).
Section 3.02. Selection of Securities to be Redeemed.
If less than all the Securities of a Series are to be redeemed, the
Trustee shall select the Securities to be redeemed, if the Securities of such
Series are listed on a national securities exchange, in accordance with the
rules of such exchange, or if the Securities of such Series are not so listed,
on either a pro rata basis or by lot or by such method as the Trustee shall deem
fair and appropriate. The Trustee shall make the selection from Securities
outstanding and not previously called for redemption. Securities in
denominations of $1,000 may only be redeemed in whole. The Trustee may select
for redemption portions (equal to $1,000 or any integral multiple thereof) of
the principal of Securities that have denominations larger than $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date,
the Issuer shall mail a notice of redemption by first-class mail, postage
prepaid, to each Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
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(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(5) that interest on Securities called for redemption ceases
to accrue on and after the redemption date;
(6) that the Securities are being redeemed pursuant to the
mandatory redemption or the optional redemption provisions, as
applicable;
(7) in the event that any Security is to be redeemed in part
only, the portion of the principal amount thereof to be redeemed and
that on and after the redemption date, upon surrender of such Security,
a new Security or Securities in principal amount equal to the
unredeemed portion thereof will be issued; and
(8) if applicable, the current Conversion Price and the date
on which the right to convert the Securities into Common Stock will
expire.
At the Issuer's request, the Trustee shall give the notice of
redemption in the Issuer's name and at its expense.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the redemption price as set
forth in the notice of redemption. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price, plus accrued interest to the
redemption date.
Section 3.05. Deposit of Redemption Price.
On or before the redemption date, the Issuer or its designee shall
deposit with the Paying Agent immediately available funds sufficient to pay the
redemption price of and accrued interest on all Securities to be redeemed on
that date.
Section 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Issuer and
the Guarantors shall execute and the Trustee shall authenticate for each Holder
a new Security equal in principal amount to the unredeemed portion of the
Security surrendered.
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ARTICLE FOUR
Covenants
Section 4.01. Payment of Securities.
The Issuer shall pay the principal of and interest on Securities of a
Series on the dates and in the manner provided in the Securities of the Series.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay the installment.
The Issuer shall pay interest on overdue principal at the rate borne by
the Series; it shall pay interest on overdue installments of interest at the
same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
The Issuer shall maintain the office or agency required under Section
2.03. The Issuer shall give prior written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time the
Issuer 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 address of the Trustee.
Section 4.03. Compliance Certificate.
The Issuer and the Company each shall deliver to the Trustee within 120
days after the end of their respective fiscal years an Officers' Certificate
satisfying the requirements of TIA ss. 3.14(a)(4) and stating whether or not the
signers know of any Default by the Issuer in performing any of its obligations
under this Indenture. If they do know of such a Default, the certificate shall
describe the Default.
Section 4.04. Additional Guarantors.
If in accordance with the provisions of the Bank Credit Facilities the
Company adds or causes to be added, any Subsidiary that was not a Guarantor at
the time of execution of this Indenture as a guarantor under the Bank Credit
Facilities, such Subsidiary shall contemporaneously become a Guarantor under
this Indenture by (i) executing and delivering to the Trustee a supplemental
indenture or an Authorizing Resolution in form reasonably satisfactory to the
Trustee pursuant to which such Subsidiary shall unconditionally guarantee all of
the Issuer's obligations under the Securities of any Series that has the benefit
of Guarantees of other Subsidiaries of the Company and this Indenture (as it
relates to all such Series) on the terms set forth in this Indenture and (ii)
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delivering to the Trustee an Opinion of Counsel that such supplemental indenture
or Authorizing Resolution has been duly authorized, executed and delivered by
such Subsidiary and constitutes a legal, valid, binding and enforceable
obligation of such Subsidiary. Thereafter, such Subsidiary shall be a Guarantor
for all purposes of this Indenture (as it relates to all such Series).
Section 4.05. Reports.
(a) So long as the Securities are outstanding, whether or not the
Company is then subject to Section 13(a) or 15(d) of the Exchange Act, the
Company shall electronically file with the SEC, the annual reports, quarterly
reports and other periodic reports that the Company would be required to file
with the SEC pursuant to Section 13(a) or 15(d) if the Company were so subject,
and such documents shall be filed with the SEC on or prior to the respective
dates (the "Required Filing Dates") by which the Company would be required so to
file such documents if the Company were so subject, unless, in any case, if such
filings are not then permitted by the SEC.
(b) If such filings with the SEC are not then permitted by the SEC, or
such filings are not generally available on the Internet free of charge, the
Company shall, within 15 days of each Required Filing Date, transmit by mail to
Holders of the Securities, as their names and addresses appear in the Register,
without cost to such Holders, and file with the Trustee copies of the annual
reports, quarterly reports and other periodic reports that the Company would be
required to file with the SEC pursuant to Section 13(a) or 15(d) of the Exchange
Act if the Company were subject to such Section 13(a) or 15(d), and promptly
upon written request, supply copies of such documents to any prospective holder
or beneficial owner at Company's cost. Delivery, of such reports, information
and documents to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
(c) So long as any Securities remain outstanding and constitute
"restricted securities" under Rule 144, 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 Act.
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ARTICLE FIVE
Successor Corporation
Section 5.01. When the Issuer or the Guarantors May Merge, etc.
Neither the Issuer nor any Guarantor will consolidate with or merge
with or into or sell, assign, transfer or lease all or substantially all of its
assets to another Person unless entitled by law and unless:
(1) the resulting, surviving, receiving, or leasing Person is, in the
case of (i) the Issuer or the Company, a corporation organized and
existing under the laws of the United States of America or any state
thereof or (ii) any Guarantor (other than the Company), a corporation
or other legal entity organized and existing under the laws of the
United States of America or any state thereof;
(2) such Person assumes by supplemental indenture in a form reasonably
satisfactory to the Trustee all the obligations of the Issuer or such
Guarantor, as applicable, under the Securities or the Guarantee, as
applicable, and the Indenture, and shall also expressly assume by an
amendment or supplement executed and delivered to the Trustee, in a
form reasonably satisfactory to the Trustee, all of the Issuer's and
such Guarantors', as applicable, covenants and other obligations under
the Registration Rights Agreement; and
(3) immediately after giving effect to, and as a result of such
consolidation, merger, sale, assignment, transfer or lease, no Default
or Event of Default shall have occurred and be continuing; provided
that this clause (3) will not restrict or be applicable to such
consolidation, merger, sale, assignment, transfer or lease of a
Guarantor with or into the Issuer, the Company or a Subsidiary that is,
or concurrently with the completion of such consolidation, merger,
sale, assignment, transfer or lease becomes, a Guarantor.
Upon any such consolidation, merger, sale, assignment or transfer
(including any consolidation, merger, sale, assignment, transfer described in
the proviso at the end of the immediately preceding sentence) the successor
corporation or legal entity, as the case may be, will be substituted for the
Issuer or such Guarantor, as applicable, under the Indenture. The successor
Person may, as applicable, then exercise every power and right of the Issuer or
such Guarantor, as applicable, under the Indenture, and the Issuer or such
Guarantor, as applicable, will be released from all of its respective
liabilities and obligations in respect of the Securities or the Guarantee, as
applicable, and the Indenture. If the Issuer or any Guarantor leases all or
substantially all of its assets, the lessee Person will be the successor to the
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Issuer or such Guarantor, as applicable, and may exercise every power and right
of the Issuer or such Guarantor, as applicable, under the Indenture, but the
Issuer or such Guarantor, as applicable, will not be released from its
respective obligations to pay the principal and interest, if any, on the
Securities.
The Issuer and the Company shall each deliver to the Trustee prior to
the consummation of the proposed transaction an Officers' Certificate to the
foregoing effect and an Opinion of Counsel stating that the proposed transaction
and such supplemental indenture or Authorizing Resolutions comply with this
Indenture.
To the extent that an Authorizing Resolution or a supplemental
indenture pertaining to any Series provides for different provisions relating to
the subject matter of this Article Five, the provisions in such Authorizing
Resolution or supplemental indenture shall govern for purposes of such Series.
ARTICLE SIX
Defaults and Remedies
Section 6.01. Events of Default.
An "Event of Default" on a Series occurs if, voluntarily or
involuntarily, whether by operation of law or otherwise, any of the following
occurs:
(1) the failure by the Issuer or a Guarantor to pay interest
on any Security of such Series when the same becomes due and payable
and the continuance of any such failure for a period of 30 days;
(2) the failure by the Issuer or a Guarantor to pay the
principal of any Security of such Series when the same becomes due and
payable at maturity, upon acceleration or otherwise;
(3) the failure by the Issuer, the Company or any Guarantor
which is a Significant Subsidiary to comply with any of its agreements
or covenants in, or provisions of, the Securities of such Series, the
Guarantees (as they relate thereto) or this Indenture (as they relate
thereto), other than a failure specifically dealt with elsewhere within
this Indenture, and such failure continues for the period and after the
notice specified below;
(4) any default under an instrument evidencing or securing any
of Issuer's Indebtedness or the Indebtedness of any Guarantor (other
than Non-Recourse Indebtedness) aggregating $10,000,000 more in
aggregate principal amount, resulting in the acceleration of such
Indebtedness, or due to the failure to pay such Indebtedness at
maturity, upon acceleration or otherwise;
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(5) the occurrence of an acceleration of, or a significant
modification of the terms (including without limitation the payment of
more than an insignificant amount of fees to the holders thereof) of
any of Toll Corp.'s 8 3/4% Senior Subordinated Notes due 2006, 7 3/4%
Senior Subordinated Notes due 2007, 8 1/8% Senior Subordinated Notes
due 2009, 8% Senior Subordinated Notes due 2009, 8 1/4% Senior
Subordinated Notes due 2011 or 8.25% Senior Subordinated Notes due 2011
(each of these series of notes being referred to below as an
"Outstanding Series"), provided that on the date of such occurrence,
the outstanding principal amount of at least one Outstanding Series to
which the occurrence relates exceeds $5,000,000);
(6) any Guarantee in respect of the Securities by the Company
or a Guarantor that is a Significant Subsidiary shall for any reason
cease to be, or be asserted in writing by the Company, such Guarantor
or the Issuer, as applicable, not to be, in full force and effect and
enforceable in accordance with its terms (other than by reason of the
termination of the Indenture or the release or discharge of any such
Guarantee in accordance with the terms of the Indenture); provided,
however, that if the Company, such Guarantor or the Issuer, as
applicable, asserts in writing that such Guarantee is not in full force
and effect and enforceable in accordance with its terms, such assertion
shall not constitute an Event of Default for purposes of this paragraph
if (i) such written assertion is accompanied by an Opinion of Counsel
of each of the Issuer, the Company and such Guarantor to the effect
that, as a matter of law, the defect or defects rendering such
Guarantee unenforceable can be remedied within 10 days of the date of
such assertion, (ii) each of the Issuer and the Company delivers an
Officers' Certificate to the effect that the Company, such Guarantor or
the Issuer, as applicable, represents that such defect or defects shall
be so remedied within such 10-day period, and (iii) such defect or
defects are in fact so remedied within such 10-day period;
(7) the Issuer, the Company or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property, or
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(D) makes a general assignment for the benefit of its
creditors; or
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Issuer, the Company or
any Significant Subsidiary as debtor in an involuntary case,
(B) appoints a Custodian of the Issuer, the Company
or any Significant Subsidiary or a Custodian for all or
substantially all of the property of the Issuer, the Company
or any Significant Subsidiary, or
(C) orders the liquidation of the Issuer, the Company
or any Significant Subsidiary,
and the order or decree remains unstayed and in effect for 90 days.
A Default as described in sub-clause (3) above will not be deemed an
Event of Default until the Trustee notifies the Issuer and the Company, or the
Holders of at least 25 percent in aggregate principal amount of the then
outstanding Securities of the applicable Series notify the Issuer and the
Company and the Trustee, of the Default and the Issuer, the Company or any
Guarantor which is a Significant Subsidiary does not cure the Default within 60
days after receipt of the notice. The notice must specify the Default, demand
that it be remedied and state that the notice is a "Notice of Default." If such
a Default is cured within such time period, it ceases.
Any Event of Default that relates exclusively to a Guarantor other than
the Company may be cured to the extent such Guarantor is released from its
Guarantee pursuant to Section 9.03.
The term "Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default with respect to
the Issuer, the Company or any Significant Subsidiary resulting from sub-clauses
(7) or (8) of Section 6.01), shall have occurred and be continuing under the
Indenture, the Trustee by notice to the Issuer and the Company or the Holders or
the Holders of at least 25 percent in principal amount of the Securities of the
applicable Series then outstanding by notice to the Issuer, the Company and the
Trustee, may declare all Securities of such Series and interest, if any, accrued
thereon to be due and payable immediately. Upon such declaration of
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acceleration, the amounts due and payable on the Securities of such Series and
interest, if any, accrued thereon will be due and payable immediately. If an
Event of Default with respect to the Issuer, the Company or any Significant
Subsidiary specified in sub-clauses (7) or (8) of Section 6.01 occurs, all
amounts due and payable on the Securities of such Series will ipso facto become
and be immediately due and payable without any declaration, notice or other act
on the part of the Trustee, the Issuer, the Company or any Holder. Holders of a
majority in principal amount of the then outstanding Securities of such Series
may rescind an acceleration with respect to such Series and its consequence
(except an acceleration due to nonpayment of principal or interest on the
Securities of such Series) if the rescission would not conflict with any
judgment or decree and if all past Events of Default have been cured or waived.
No such rescission shall extend to or shall affect any subsequent Event
of Default, or shall impair any right or power consequent thereon.
Section 6.03. Other Remedies.
If an Event of Default on a Series occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or in equity to
collect the payment of principal of or interest on the Series or to enforce the
performance of any provision in the Securities or this Indenture applicable to
the Series.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities 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. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Past Defaults.
Subject to Section 10.02, the Holders of a majority in principal amount
of the outstanding Securities of a Series on behalf of all the Holders of the
Series by notice to the Trustee may waive an past Default on such Series and its
consequences. When a Default is waived, it is cured and stops continuing, and
any Event of Default arising therefrom shall be deemed to have been cured; but
no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereon.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the outstanding
Securities of a Series may 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 such Series. The Trustee,
however, may refuse to follow any direction (i) that conflicts with law or this
Indenture, (ii) that, subject to Section 7.01, the Trustee determines is unduly
prejudicial to the rights of other Holders, or (iii) that would involve the
Trustee in personal liability.
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Section 6.06. Limitation on Suits.
A Holder of a Series may not pursue any remedy with respect to this
Indenture or the Series unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default on the Series;
(2) the Holders of at least 25% in aggregate principal amount
of the outstanding Securities of the Series make a written request to
the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) no written request inconsistent with such written request
shall have been given to the Trustee during such 60-day period by
Holders of a majority of the aggregate principal amount of the
outstanding Securities of the Series.
A Holder may not use this Indenture to 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 and interest on the Security, on or
after the respective due dates expressed in the Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified in
Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Issuer,
any Guarantor or any other obligor on the Securities for the whole amount of
principal and interest remaining unpaid.
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Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements,
and advances of the Trustee, its agents and counsel) and the Holders allowed in
any judicial proceedings relative to the Issuer, the Company (or any other
obligor upon the Securities, including the other Guarantors) its creditors or
its property, and unless prohibited by applicable law or regulation, may vote on
behalf of the Holders in any election of a Custodian, and shall be entitled and
empowered to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee. Nothing herein shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder or to authorize the Trustee
to vote in respect of the claim of any Holder except as aforesaid for the
election of the Custodian.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders of the Series for amounts due and unpaid on
the Series for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Series for principal and interest, respectively; and
Third: to the Issuer or the Guarantors as their interests may
appear.
The Trustee may fix a Record Date and payment date for any payment to
Holders pursuant to this Section.
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 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
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attorneys' fees, against any party litigant in the suit, having the due regard
to the merits and good faith of the claims or defenses made by the party
litigant. This Section 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 Series.
ARTICLE SEVEN
Trustee
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall, subject to Section 6.02, exercise its rights and powers and use the same
degree of care and skill in their 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:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. The Trustee, however, 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 or matters stated
therein.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) 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 or any other direction of the
Holders permitted hereunder.
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(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives 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 with the Issuer. Money held in trust by
the Trustee need not be segregated from other funds except to the extent
required by law.
(g) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable grounds for believing that
the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
Section 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting on any document, resolution, certificate, instrument, report, or
direction 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, resolution, certificate, instrument, report, or direction.
(b) Before the Trustee acts or refrains from acting, it may require
from each of the Issuer and the Company an Officers' Certificate or an Opinion
of Counsel or both, which shall conform to Sections 12.04 and 12.05 hereof and
containing such other statements as the Trustee reasonably deems necessary to
perform its duties hereunder. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such Officers' Certificate,
Opinion of Counsel or any other direction of the Issuer permitted hereunder.
(c) The Trustee may act through 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 taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
(e) The Trustee may consult with counsel, and the written advice of
such counsel or any Opinion of Counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
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(f) Unless otherwise specifically provided in the Indenture, any
demand, request, direction or notice from the Issuer shall be sufficient if
signed by an Officer of the Issuer.
(g) For all purposes under this Indenture, the Trustee shall not be
deemed to have notice or knowledge of any Event of Default (other than under
Section 6.01(1) or 6.01(2)) unless a Trust Officer assigned to and working in
the Trustee's corporate trust office has actual knowledge thereof or unless
written notice of any Event of Default is received by the Trustee at its address
specified in Section 12.02 hereof and such notice references the Securities and
the Guarantees generally, the Issuer, the Guarantors or this Indenture.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee, however, must comply with
Sections 7.10 and 7.11.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture, the Securities or of any prospectus or offering memorandum used
to sell the Securities; it shall not be accountable for the Issuer's use of the
proceeds from the Securities; it shall not be accountable for any money paid to
the Issuer, or upon the Issuer's direction, if made under and in accordance with
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 of the Issuer in this
Indenture or in the Securities other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default on a Series occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Holder of the Series notice of the
Default (which shall specify any uncured Default known to it) within 90 days
after it occurs. Except in the case of a Default in payment of principal of or
interest on a Series, the Trustee may withhold the notice if and so long as the
executive or any trust committee of the Trustee and/or responsible officers of
the Trustee in good faith determine(s) that withholding the notice is in the
interests of Holders of the Series.
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Section 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall mail to each Holder a brief report
dated as of such May 15 that complies with TIA ss. 313(a) (but if no event
described in TIA ss. 313(a)(2) has occurred within the twelve months preceding
the reporting date no report need be transmitted). The Trustee also shall comply
with TIA ss. 313(b) and ss. 313(c).
A copy of each report at the time of its mailing to Holders shall be
delivered to the Issuer and filed by the Trustee with the SEC and each national
securities exchange on which the Securities are listed. The Issuer and the
Company agree to notify the Trustee of each national securities exchange on
which the Securities are listed.
Section 7.07. Compensation and Indemnity.
The Issuer and the Company shall pay to the Trustee or predecessor
trustee from time to time reasonable compensation for their respective services
subject to any written agreement between the Trustee and the Issuer and the
Company. The Issuer and the Company shall reimburse the Trustee upon request for
all reasonable out-of-pocket expenses incurred by it. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents and
counsel. The Issuer and the Company shall indemnify the Trustee and each
predecessor trustee, its officers, directors, employees and agents and hold it
harmless against any loss, liability or expense incurred or made by or on behalf
of it in connection with the administration of this Indenture or the trust
hereunder and its duties hereunder including the costs and expenses of defending
itself against or investigating any claim in the premises. The Trustee shall
notify the Issuer and the Company promptly of any claim for which it may seek
indemnity. The Issuer and the Company need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee through the
Trustee's, or its officers', directors', employees' or agents' negligence or bad
faith.
To ensure the payment of obligations by the Issuer and the Company
pursuant to this Section, the Trustee shall have a claim prior to the Securities
on all money or property held or collected by the Trustee, except that held in
trust to pay principal of or interest on particular Securities. When the Trustee
incurs expenses or renders services in connection with an Event of Default
specified in Section 6.01 or in connection with Article Six hereof, the expenses
(including the reasonable fees and expenses of its counsel) and the compensation
for services in connection therewith are to constitute expenses of
administration under any bankruptcy law.
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Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Issuer and the Company. The
Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee by so notifying the Trustee to be removed in writing and may
appoint a successor trustee with the Issuer's consent. Such resignation or
removal shall not take effect until the appointment by the Holders or the Issuer
as hereinafter provided of a successor trustee and the acceptance of such
appointment by such successor trustee. The Issuer may or the Company may cause
the Issuer to remove the Trustee and any Holder may petition any court of
competent jurisdiction for the removal of the Trustee if:
(1) the Trustee fails to comply with Section 7.10 after
written request by the Issuer or any bona fide Holder who has been a
Holder for at least six months;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuer shall promptly appoint a successor
trustee. If a successor trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or any
Holder may or the Company may cause the Issuer to petition any court of
competent jurisdiction for the appointment of a successor trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee, the Issuer and the Company. Immediately
after that, the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee (subject to the prior claim provided by Section
9.07). Any resignation or removal of the Trustee and any appointment of a
successor Trustee shall become effective upon acceptance of appointment by the
successor Trustee. The successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges with or into 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.
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Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1). The Trustee shall have a combined capital and
surplus of at least $15,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA ss. 310(b).
Section 7.11. Preferential Collection of Claims Against the Issuer.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE EIGHT
Discharge of Indenture
Section 8.01. Defeasance upon Deposit of Moneys or U.S. Government Obligations.
(a) The Issuer may, at its option and at any time, elect to have either
paragraph (b) or paragraph (c) below be applied to the outstanding Securities of
any Series upon compliance with the applicable conditions set forth in paragraph
(d).
(b) Upon the Issuer's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Issuer and the Guarantors shall be deemed
to have been released and discharged from their respective obligations with
respect to the outstanding Securities of a Series on the date the applicable
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, such Legal Defeasance means that the Issuer shall be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding
Securities of a Series, which shall thereafter be deemed to be "outstanding"
only for the purposes of the Sections and matters under this Indenture referred
to in (i) and (ii) below, and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned,
except for the following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of outstanding Securities of a
Series to receive solely from the trust fund described in paragraph (d) below
and as more fully set forth in such paragraph, payments in respect of the
principal of and interest on such Securities when such payments are due and (ii)
obligations listed in Section 8.02, subject to compliance with this Section. The
Issuer may exercise its option under this paragraph (b) notwithstanding the
prior exercise of its option under paragraph (c) below with respect to such
Securities.
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(c) Upon the Issuer's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Issuer and the Guarantors shall be
released and discharged from the obligations under any covenant contained in
Article Five, Section 4.04 and any other covenant contained in the Authorizing
Resolution or supplemental indenture relating to such Series to the extent
provided for therein, on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Securities of such
Series shall thereafter be deemed to be not "outstanding" for the purpose of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Securities of a Series, the Issuer 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(3), but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities of the
applicable Series:
(1) The Issuer shall have irrevocably deposited in trust with
the Trustee, pursuant to an irrevocable trust and security agreement in
form and substance reasonably satisfactory to the Trustee, money in
U.S. dollars or U.S. government obligations or a combination thereof
which through the payment of interest and principal thereof in
accordance with their terms will provide money in an amount sufficient
to pay the principal of and interest on, and any mandatory sinking fund
payments in respect of the outstanding Securities of such Series on the
stated maturity of the payments, in accordance with the terms of this
Indenture and such Securities; provided, however, that the Trustee (or
other qualifying trustee) shall have received an irrevocable written
order from the Issuer instructing the Trustee (or other qualifying
trustee) to apply such money or the proceeds of such U.S. government
obligations to said payments with respect to the Securities of such
Series to maturity;
(2) No Default or Event of Default and no event which, with
notice or lapse of time, would become an Event of Default shall have
occurred and be continuing on the date of such deposit;
(3) Such deposit will not result in a Default under this
Indenture or a breach or violation of, or constitute a default under,
any other material instrument or agreement to which the Issuer, the
Company or any of the Subsidiaries is a party or by which it or any of
their property is bound;
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(4) (i) In the event the Issuer elects paragraph (b) hereof,
the Issuer shall deliver to the Trustee an Opinion of Counsel in the
United States, in form and substance reasonably satisfactory to the
Trustee, to the effect that (A) the Issuer has received from, or there
has been published by, the Internal Revenue Service a ruling or (B)
since the Issue Date pertaining to such Series, there has been a change
in the applicable federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall state that, or
(ii) in the event the Issuer elects paragraph (c) hereof, the Issuer
shall deliver to the Trustee an Opinion of Counsel in the United
States, in form and substance reasonably satisfactory to the Trustee,
to the effect that, in the case of clauses (i) and (ii), Holders of the
Securities of such Series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and the
defeasance contemplated hereby and will be subject to federal income
tax in the same amounts and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not
occurred;
(5) The Issuer shall have delivered to the Trustee an
Officers' Certificate, stating that the deposit under clause (1) was
not made by the Issuer with the intent of preferring the Holders of the
Securities of such Series over any other creditors of the Issuer or
with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Issuer or others;
(6) The Issuer shall have delivered to the Trustee an Opinion
of Counsel, reasonably satisfactory to the Trustee, to the effect that,
(A) the trust funds will not be subject to the rights of Holders of
Indebtedness of the Issuer other than the Securities of such Series and
(B) assuming no intervening bankruptcy of the Company between the date
of deposit and the 91st day following the deposit and that no Holder of
Securities of such Series is an insider of the Issuer, after the 91st
day following the deposit, the trust funds will not be subject to any
applicable bankruptcy, insolvency, reorganization or similar law
affecting creditors' rights generally; and
(7) The Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the defeasance contemplated by
this Section have been complied with.
In the event all or any portion of the Securities of a Series are to be
redeemed through such irrevocable trust, the Issuer must make arrangements
satisfactory to the Trustee, at the time of such deposit, for the giving of the
notice of such redemption or redemptions by the Trustee in the name and at the
expense of the Issuer.
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(e) In addition to the Issuer's rights above under this Section, the
Issuer may terminate all of its obligations under this Indenture with respect to
a Series, and the obligations of the Guarantors shall terminate with respect to
such Series (subject to Section 8.02), when:
(1) All Securities of such Series theretofore authenticated
and delivered (other than Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.07
and Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust) have been delivered
to the Trustee for cancellation or all such Securities not theretofore
delivered to the Trustee for cancellation have become due and payable
and the Issuer has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust solely for that purpose an amount
of money sufficient to pay and discharge the entire Indebtedness on the
Securities not theretofore delivered to the Trustee for cancellation,
for principal of and interest;
(2) The Issuer has paid or caused to be paid all other sums
payable hereunder by the Company;
(3) The Issuer has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of the
Securities at maturity or redemption, as applicable; and
(4) The Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, stating that all conditions
precedent specified herein relating to the satisfaction and discharge
of this Indenture have been complied with.
Section 8.02. Survival of the Issuer's Obligations.
Notwithstanding the satisfaction and discharge of the Indenture under
Section 8.01, the Issuer's obligations in paragraph 9 of the Securities and
Sections 2.03 through 2.07, 4.01, 7.07, 7.08, 8.04 and 8.05, however, shall
survive until the Securities of an applicable Series are no longer outstanding.
Thereafter, the Issuer's obligations in paragraph 9 of the Securities of such
Series and Sections 7.07, 8.04 and 8.05 shall survive (as they relate to such
Series).
Section 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. government obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited money
and the money from U.S. government obligations in accordance with this Indenture
to the payment of principal of and interest on the Securities of the defeased
Series.
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Section 8.04. Repayment to the Issuer.
The Trustee and the Paying Agent shall promptly pay to the Issuer upon
request any excess money or securities held by them at any time. The Trustee and
the Paying Agent shall pay to the Issuer upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years,
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Issuer cause to be
published once in a newspaper of general circulation in the City of New York or
mail to each such Holder notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication or mailing, any unclaimed balance of such money then
remaining will be repaid to the Issuer. After payment to the Issuer, Holders
entitled to the money must look to the Issuer or any Guarantor for payment as
general creditors unless applicable abandoned property law designates another
Person and all liability of the Trustee or such Paying Agent with respect to
such money shall cease.
Section 8.05. Reinstatement.
If the Trustee is unable to apply any money or U.S. government
obligations in accordance with Section 8.01 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Issuer's
and each Guarantor's obligations under this Indenture and the Securities
relating to the Series shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.01 until such time as the Trustee is permitted to
apply all such money or U.S. government obligations in accordance with Section
8.01; provided, however, that (a) if the Issuer has made any payment of interest
on or principal of any Securities of the Series because of the reinstatement of
their obligations, the Issuer shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money or U.S. government
obligations held by the Trustee and (b) unless otherwise required by any legal
proceeding or any order or judgment of any court or governmental authority, the
Trustee shall return all such money or U.S. government obligations to the Issuer
promptly after receiving a written request therefor at any time, if such
reinstatement of the Issuer's obligations has occurred and continues to be in
effect.
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ARTICLE NINE
Guarantees
Section 9.01. Unconditional Guarantees.
Subject to any other provisions set forth in the Authorizing Resolution
or supplemental indenture relating to a particular Series, each Guarantor,
jointly and severally, hereby unconditionally guarantees on a senior basis (each
such guarantee to be referred to herein as the "Guarantee") to each Holder of
Securities of such Series authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns irrespective of the validity and
enforceability of this Indenture, that: (i) the principal of and interest on the
Securities of such Series will be promptly paid in full when due, subject to any
applicable grace period, whether at maturity, by acceleration or otherwise and
interest on the overdue principal, if any, and interest on any interest of the
Securities of such Series and all other obligations of the Issuer to the Holders
or the Trustee hereunder or thereunder, except obligations to pay principal and
interest on any other Series not so guaranteed, will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (ii) in case
of any extension of time of payment or renewal of any Securities of such Series
or of any such other obligations, the same will be promptly paid in full when
due or to be performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by
acceleration or otherwise, subject, however, in the case of clauses (i) and (ii)
above, to the limitations set forth in Section 9.04. Each Guarantor hereby
agrees that its obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Securities of such Series or
this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Securities of such Series with respect to any
provisions hereof or thereof, the recovery of any judgment against the Issuer,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. Each
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, protest, notice and all
demands whatsoever and covenants that, subject to Section 9.03, this Guarantee
will not be discharged except by complete performance of the obligations
contained in the Securities of the applicable Series, this Indenture and in this
Guarantee. If any Holder or the Trustee is required by any court or otherwise to
return to the Issuer or any Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to the Issuer or such Guarantor, any
amount paid by the Issuer or such Guarantor to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor further agrees that, as between each Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
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Article Six for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article Six, such obligations (whether or not due and
payable) shall forthwith become due and payable by each Guarantor for the
purpose of this Guarantee.
Section 9.02. Severability.
In case any provision of this Guarantee 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 9.03. Release of a Guarantor.
(a) Any Guarantor other than the Company may be released from its
Guarantee so long as (1) no Default or Event of Default exists or would result
from release of such Guarantee, (2) the Guarantor being released has
Consolidated Net Worth of less than 5% of the Company's Consolidated Net Worth
as of the end of the Company's most recent fiscal quarter, (3) the Guarantors
released from their Guarantees in any year-end period comprise in the aggregate
less than 10% (or 15% if and to the extent necessary to permit the cure of a
Default) of the Company's Consolidated Net Worth as of the end of the Company's
most recent fiscal quarter, (4) such release would not have a material adverse
effect on the homebuilding business of the Company and its Subsidiaries and (5)
the Guarantor is released from its guaranty(ees) under the Bank Credit
Facilities; provided, that if such Guarantor subsequently provides a guarantee
of the Bank Credit Facilities, it shall comply with Section 4.04. If there are
no guarantors under the Bank Credit Facilities, Guarantors under this Indenture,
other than the Company, will be released from their Guarantees.
(b) Unless the Company elects otherwise, a Subsidiary that is a
Guarantor shall be deemed automatically and unconditionally released and
discharged from all obligations under this Article Nine upon the delivery of an
Officer's Certificate from each of the Issuer and the Company to the Trustee
that the terms and conditions of Section 9.03 have been satisfied and an Opinion
of Counsel of the Issuer and the Company to the Trustee that such release under
the Bank Credit Facility is effective, without any further action required on
the part of the Trustee or any Holder. The Trustee shall deliver an appropriate
instrument evidencing any such release upon receipt of a request by the Issuer
and the Company.
The Company and any Guarantor not released in accordance with this
Section shall remain liable for the full amount of principal of and interest on
the Securities as provided in this Article Nine.
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Section 9.04. Limitation of a Guarantor's Liability.
Each Guarantor and each Holder hereby confirms that it is the intention
of all such parties that the guarantee by the Guarantors pursuant to their
Guarantee not constitute a fraudulent transfer or conveyance for purposes of the
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar Federal or state law. To effectuate the foregoing
intention, the Guarantors (other than the Company) and the Holders hereby
irrevocably agree that the obligations of such Guarantors under the Guarantee
shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantors and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to Section 9.06, result in the obligations of such Guarantors under the
Guarantee not constituting such fraudulent transfer or conveyance.
Section 9.05. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Issuer's
obligations with respect to any Securities or any other Guarantor's obligations
with respect to the Guarantee. "Adjusted Net Assets" of such Guarantor at any
date shall mean the lesser of the amount by which (x) the fair value of the
property of such Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date and after
giving effect to any collection from any other Guarantor in respect of the
obligations of its Guarantee), but excluding liabilities under the Guarantee, of
such Guarantor at such date and (y) the present fair salable value of the assets
of such Guarantor at such date exceeds the amount that will be required to pay
the probable liability of such Guarantor on its debts (after giving effect to
all other fixed and contingent liabilities incurred or assumed on such date and
after giving effect to any collection from any other Guarantor in respect of the
obligations of such Guarantor under its Guarantee), excluding debt in respect of
the Guarantee of such Guarantor, as they become absolute and matured. This
Section 9.05 shall be for the benefit of the Issuer, the Company and the
Guarantors and does not inure to the benefit of and may not be relied upon by
any third party beneficiaries.
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Section 9.06. Waiver of Subrogation.
Until all guaranteed obligations under this Indenture and with respect
to all Securities of an applicable Series are paid in full, each Guarantor
hereby irrevocably waives any claim or other rights which it may now or
hereafter acquire against the Issuer that arise from the existence, payment,
performance or enforcement of such Guarantor's obligations under the Guarantee
and this Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder of Securities of the applicable Series against the
Issuer, whether or not such claim, remedy or right arises in equity, or under
contract, statute or common law, including, without limitation, the right to
take or receive from the Issuer, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim or other rights. If any amount shall be paid to any Guarantor in
violation of the preceding sentence and the Securities of the applicable Series
shall not have been paid in full, such amount shall have been deemed to have
been paid to such Guarantor for the benefit of, and held in trust for the
benefit of, the Holders of the Securities of the applicable Series, and shall
forthwith be paid to the Trustee for the benefit of such Holders to be credited
and applied upon the Securities of the applicable Series, whether matured or
unmatured, in accordance with the terms of this Indenture. Each Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the waiver set
forth in this Section is knowingly made in contemplation of such benefits.
Section 9.07. Execution of Guarantee.
To evidence their guarantee to the Holders set forth in this Article
Nine, the Guarantors hereby agree to execute the Guarantee in substantially the
form included in Exhibit A or in any such other form set forth in the
Authorizing Resolution or supplemental indenture pertaining to the applicable
Series, which shall be endorsed on each Security ordered to be authenticated and
delivered by the Trustee. Each Guarantor hereby agrees that its Guarantee set
forth in this Article Nine shall remain in full force and effect notwithstanding
any failure to endorse on each Security a notation of such Guarantee. Each such
Guarantee shall be signed on behalf of each Guarantor by two Officers, or an
Officer and an Assistant Secretary or one Officer shall sign and one Officer or
an Assistant Secretary (each of whom shall, in each case, have been duly
authorized by all requisite corporate actions) shall attest to such Guarantee
prior to the authentication of the Security on which it is endorsed, and the
delivery of such Security by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of such Guarantee on behalf of such
Guarantor. Such signatures upon the Guarantee may be by manual or facsimile
signature of such Officers and may be imprinted or otherwise reproduced on the
Guarantee, and in case any such Officer who shall have signed the Guarantee
shall cease to be such Officer before the Security on which such Guarantee is
endorsed shall have been authenticated and delivered by the Trustee or disposed
of by the Issuer, such Security nevertheless may be authenticated and delivered
or disposed of as though the Person who signed the Guarantee had not ceased to
be such Officer of the Company or the other Guarantor.
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ARTICLE TEN
Amendments, Supplements and Waivers
Section 10.01. Without Consent of Holders.
The Issuer and the Trustee may modify or amend provisions of this
Indenture, the Guarantees or the Securities of a Series without notice to or
consent of any Holder of such Series:
(1) to evidence the succession of another Person to the Issuer
or any Guarantor under the Indenture and the Securities or the
Guarantee, respectively;
(2) to add to Article Four covenants of the Issuer or the
covenants of the Guarantors for the benefit of the Holders or to
surrender any right or power conferred upon the Issuer or the
Guarantors by this Indenture;
(3) to add Events of Default for the benefit of the Holders;
(4) to change or eliminate any provision of the Indenture,
provided that any such change or elimination shall become effective
only when there are no outstanding Securities;
(5) to secure any Securities or Guarantee under the Indenture;
(6) to establish the form or terms of the Securities or
Guarantee of any Series;
(7) to add Guarantors;
(8) to provide for the acceptance of appointment by a
successor Trustee or facilitate the administration of the trusts under
this Indenture by more than one Trustee;
(9) to close this Indenture to authentication and delivery of
additional Series of Securities;
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(10) to supplement any provisions of the Indenture to the
extent necessary to permit or facilitate defeasance and discharge of
the Securities, provided that such action shall not adversely affect
the rights of Holders;
(11) to remove a Guarantor in respect of any Series which, in
accordance with the terms of this Indenture applicable to the
particular Series, ceases to be liable in respect of its Guarantee;
(12) to cure any ambiguity, omission, defect or inconsistency
in this Indenture, provided that such action does not adversely affect
the interests of Holders;
(13) to provide that specific provisions of this Indenture
shall not apply to a Series not previously issued;
(14) to provide for uncertificated Securities in addition to
or in place of certificated Securities; and
(15) to make any other change that does not adversely affect
the interests of Holders.
After an amendment under this Section becomes effective, the Company
shall mail notice of such amendment to the Holders.
Section 10.02. With Consent of Holders.
The Issuer and the Trustee, with the written consent of the Holders of
at least a majority of the principal amount of the outstanding Securities of
each such Series affected by the amendment, may execute supplemental indentures
adding any provisions to, or changing or eliminating any of the provisions of
this Indenture or modifying the rights of the Holders of such Securities, except
that no such supplemental indenture may, without the consent of the Holders of
each outstanding Security affected by the supplemental indenture, among other
things:
(1) change the final maturity of the Securities, or reduce the
rate or extend the time of payment of interest, on the Securities, or
reduce the principal amount of the Securities, or impair the right to
institute suit for payment of the Securities;
(2) reduce the percentage of Securities, the consent of the
Holders of which is required for any such supplemental indenture, for
any waiver of compliance with Sections 6.04, 6.07 or this Section
10.02, a past Default or Event of Default in the payment of the
principal of or interest on any Security and their consequences
provided in this Indenture, or any other covenant or provision;
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(3) modify any of the provisions regarding the modification of
this Indenture, waivers of a past Default or Event of Default in the
payment of the principal of or interest on any Security or waivers of
Sections 6.04, 6.07 or this Section, except to increase any percentage
or to provide that certain other provisions of the Indenture cannot be
modified or waived without the consent of the Holder of each
outstanding Security affected thereby;
(4) alter the provisions (including related definitions) with
respect to redemption of Securities pursuant to Article Three hereof or
with respect to any obligations on the part of the Issuer to offer to
purchase or to redeem Securities of a Series pursuant to the
Authorizing Resolution or supplemental indenture pertaining to such
Series;
(5) modify the ranking or priority of the Securities of any
Series or the Guarantee thereof in a manner adverse to the Holders; or
(6) make any Security payable at a place or in money other
than that stated in the Security.
Subject to the following sentence, the Holders of a majority in
principal amount of the outstanding Securities of any Series may, on behalf of
the Holders of all such Securities of such Series, waive any past default under
this Indenture relating to such Series without notice to any Holder. Without the
consent of the Holder of a Securities affected, however, an amendment,
supplement or waiver, including a waiver pursuant to Section 6.04, shall not be
able to effect any of the actions contemplated by clauses (1) - (6) of this
Section. Each such Series shall vote as a separate class.
An amendment of a provision included solely for the benefit of one or
more Series does not affect the interests of Holders of any other Series.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplement, but it shall
be sufficient if such consent approves the substance thereof.
Section 10.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
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Section 10.04. Revocation and Effect of Consents.
A consent to an amendment, supplement or waiver by a Holder shall bind
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. Subject to the following
paragraph, any such Holder or subsequent Holder, however, may revoke the consent
as to his Security or portion of a Security. Such revocation shall be effective
only if the Trustee receives the notice of revocation before the date the
amendment, supplement or waiver becomes effective.
The Company may, but shall not be obligated to, fix a Record Date for
the purpose of determining the Holders of Securities of any Series entitled to
consent to any amendment, supplement or waiver, which Record Date shall be at
least 10 days prior to the first solicitation of such consent. If a Record Date
is fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such Record Date (or their duly
designated proxies), and only those Persons, shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such Record Date. No such consent shall be valid or effective for more
than 90 days after such Record Date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (1)
through (6) of Section 10.02, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security; provided that any such waiver shall
not impair or affect the right of any Holder to receive payment of principal of
and interest on a Security, on or after the respective due dates expressed in
such Security, or to bring suit for the enforcement of any such payment on or
after such respective dates without the consent of such Holder.
Section 10.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security
or a Guarantee, the Issuer may or the Company may cause the Issuer to require
the Holder of the Security or the Guarantor, as applicable, to deliver such
Security or Guarantee to the Trustee, at which time the Trustee shall place an
appropriate notation on the Security or Guarantee, as applicable, about the
changed terms and return it to the Holder. Alternatively, if the Trustee or the
Issuer so determines or the Company causes the Issuer to so determine, the
Issuer in exchange for the Security or Guarantee, as applicable, shall issue and
the Trustee shall authenticate a new Security that reflects the changed terms.
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Section 10.06. Trustee to Sign Amendments, etc.
Subject to Section 7.02(b), the Trustee shall sign any amendment,
supplement or waiver authorized pursuant to this Article if the amendment,
supplement or waiver does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. If it does, the Trustee may but need not sign it.
In signing or refusing to sign such amendment or supplemental indenture, the
Trustee shall be entitled to receive and shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel as conclusive evidence
that such amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Issuer in accordance with its terms.
ARTICLE ELEVEN
Conversion of Securities
Section 11.01. Applicability of Article.
Securities of any Series which are convertible into Common Stock at the
option of the Holder shall be convertible in accordance with their terms and
unless the Authorizing Resolution provides otherwise, in accordance with this
Article. Each reference in this Article Eleven to "a Security" or "the
Securities" refers to the Securities of the particular Series that is
convertible into Common Stock. If more than one Series of Securities with
conversion privileges are outstanding at any time, the provisions of this
Article Eleven shall be applied separately to each such Series.
Section 11.02. Conversion Privilege.
Subject to and upon compliance with the provisions of this Article
Eleven, the Holder of any Security so designated shall have the right, at its,
his or her option, at any time prior to the close of business on the date
specified in the Securities of such Series (or if such Security or portion
thereof is called for redemption prior to such date, then in respect of such
Security or portion thereof to and including but not after the close of business
on the second day (or, if such day is not a Business Day, then on the next
following Business Day) preceding the date fixed for such redemption) to convert
the principal amount of any such Security, or any portion of such principal
amount which is $1,000 or an integral multiple thereof, into that number of
fully paid and non-assessable shares of the Company's Common Stock (calculated
as to each conversion to the nearest 1/100th of a share) obtained by dividing
the principal amount of the Security or portion thereof to be converted by the
Conversion Price and by surrender of the Security so to be converted in whole or
in part, such surrender to be made in the manner provided in Section 11.03.
Notwithstanding the previous sentence, if the Issuer shall fail to redeem a
Security which has been called for redemption, the Holder of such Security shall
retain the right to convert such Security as provided in this Article Eleven.
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Section 11.03. Manner of Exercise of Conversion Privilege.
In order to exercise a conversion privilege, the Holder of any Security
to be converted in whole or in part shall surrender such Security at any of the
offices or agencies to be maintained for such purpose by the Issuer pursuant to
Section 2.01, and shall give notice to the Issuer and the Company in the form
provided in the Security, duly executed, at such office or agency that the
Holder elects to convert such Security or the portion thereof specified in said
notice. Such notice shall also state the name or names, together with the
address or addresses, in which the certificate or certificates for shares of
Common Stock which shall be issuable on such conversion shall be issued. Each
Security surrendered for conversion shall, unless the shares issuable on
conversion are to be issued in the same name as the name in which such Security
is registered, be accompanied by instruments of transfer, in form satisfactory
to the Company, duly executed by the Holder or its, his or her duly authorized
attorney. Securities so surrendered during the period from the close of business
on a Record Date, or the next preceding Business Day if such Record Date is not
a Business Day, preceding any Interest Payment Date to the opening of business
on such Interest Payment Date (excluding Securities or portions thereof called
for redemption during such period) shall also be accompanied by payment in
next-day funds or other funds acceptable to the Company of an amount equal to
the interest payable on such Interest Payment Date on the principal amount of
such Security then being converted; provided, however, that, if the Issuer shall
default on the payment of said interest, said funds shall be returnable to the
payor thereof. As promptly as practicable after the surrender of such Security,
as aforesaid, the Company shall issue and shall deliver at such office or agency
to such Holder, or on its, his or her written order, a certificate or
certificates for the number of full shares of Common Stock issuable upon the
conversion of such Security or portion thereof in accordance with the provisions
of this Article Eleven and any fractional interest in respect of a share of
Common Stock arising upon such conversion shall be settled as provided in
Section 11.04. In case any Security of a denomination greater than $1,000 shall
be surrendered for partial conversion, the Issuer and the Company shall execute
and the Trustee shall authenticate and deliver to or upon the order of the
Holder of the Security so surrendered, at the expense of the Issuer, a new
Security or Securities and Guarantee or Guarantees in authorized denominations
in an aggregate principal amount equal to the unconverted portion of the
surrendered Security. Such conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which such Security
shall have been surrendered and such notice received by the Issuer and the
Company as aforesaid, and the Person or Persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of the shares represented thereby at such time and such conversion shall be at
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the Conversion Price in effect at such time, unless the stock transfer books of
the Company shall be closed on that date, in which event such Person or Persons
shall be deemed to have become such holder or holders of record at the close of
business on the next succeeding day on which such stock transfer books are open,
but such conversion shall be at the Conversion Price in effect on the date upon
which such Security shall have been surrendered and such notice received by the
Issuer and the Company. Subject to the aforesaid requirement for a payment in
the event of conversion after the close of business on a Record Date preceding
an Interest Payment Date, no payment or adjustment shall be made on conversion
for interest accrued on the Securities surrendered for conversion or for
dividends on the Common Stock delivered on such conversion.
Section 11.04. Payment in Lieu of Fractional Shares.
No fractional shares of Common Stock shall be issued upon conversion of
the Securities. Instead of any fractional interest in a share of Common Stock
which would otherwise be deliverable upon the conversion of any Security or
Securities, the Issuer and/or the Company shall make an adjustment therefor to
the nearest 1/100th of a share in cash at the Current Market Price thereof at
the close of business on the Business Day next preceding the day of conversion.
If more than one Security shall be surrendered for conversion at one time by the
same Holder, the number of full shares issuable upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the Securities, or
specified portions thereof to be converted, so surrendered.
Section 11.05. Adjustment of Conversion Price.
The Conversion Price shall be adjusted from time to time as follows:
(a) In case the Company shall hereafter (i) pay a dividend or make a
distribution on its Common Stock in shares of Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares, (iii)
combine its outstanding shares of Common Stock into a smaller number of shares,
or (iv) issue by reclassification of its Common Stock any shares of Capital
Stock of the Company, the Conversion Price in effect immediately prior to such
action shall be adjusted so that the Holder of any Security thereafter
surrendered for conversion shall be entitled to receive the number of shares of
Common Stock or other Capital Stock of the Company which it, he or she would
have owned immediately following such action had such Security been converted
immediately prior thereto. An adjustment made pursuant to this subsection (a)
shall become effective immediately after the Record Date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
If, as a result of an adjustment made pursuant to this subsection (a), the
Holder of any Security thereafter surrendered for conversion shall become
entitled to receive shares of two or more classes of Capital Stock or shares of
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Common Stock and other Capital Stock of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a statement
filed with the Trustee and with the Registrar) shall determine in an equitable
manner the allocation of the adjusted Conversion Price between or among shares
of such classes of Capital Stock or shares of Common Stock and other Capital
Stock.
(b) In case the Company shall hereafter issue rights or warrants to
holders of its outstanding shares of Common Stock generally entitling them (for
a period expiring within 45 days after the Record Date mentioned below) to
subscribe for or purchase shares of Common Stock at a price per share less than
the Current Market Price per share of the Common Stock on the Record Date
mentioned below, the Conversion Price of the shares of Common Stock shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of issuance of such
rights or warrants by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of shares which the aggregate offering price of the
total number of shares so offered would purchase at such Current Market Price,
and of which the denominator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants plus the number
of additional shares of Common Stock offered for subscription or purchase. Such
adjustment shall become effective immediately after the Record Date for the
determination of shareholders entitled to receive such rights or warrants.
(c) In case the Company shall hereafter distribute to holders of its
outstanding Common Stock generally evidences of its indebtedness or assets
(excluding any cash dividend paid from retained earnings of the Company and
dividends or distributions payable in stock for which adjustment is made
pursuant to subsection (a) of this Section 11.05) or rights or warrants to
subscribe to securities of the Company (excluding those referred to in
subsection (b) of this Section 11.05), then in each such case the Conversion
Price of the shares of Common Stock shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction of which the
numerator shall be the Current Market Price per share of the Common Stock on the
Record Date mentioned below less the then fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and shall be
described in a statement filed with the Trustee and with the Registrar) of the
portion of the evidences of indebtedness or assets so distributed to the holder
of one share of Common Stock or of such subscription rights or warrants
applicable to one share of Common Stock, and of which the denominator shall be
such Current Market Price per share of Common Stock. Such adjustment shall
become effective immediately after the Record Date for the determination of
shareholders entitled to receive such distribution.
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(d) In any case in which this Section 11.05 shall require that an
adjustment be made immediately following a Record Date, the Company may elect to
defer (but only until five Business Days following the filing by the Issuer with
the Trustee and the Registrar of the certificate of independent public
accountants described in subsection (f) of this Section 11.05) issuing to the
Holder of any Security converted after such Record Date the shares of Common
Stock issuable upon such conversion over and above the shares of Common Stock
issuable upon such conversion on the basis of the Conversion Price prior to
adjustment.
(e) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% of such price;
provided, however, that any adjustments which by reason of this subsection (e)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment, and provided further that adjustment shall be
required and made in accordance with the provisions of this Article Eleven
(other than this subsection (e)), not later than such time as may be required in
order to preserve the tax-free nature of a distribution to the holders of
Securities or Common Stock. All calculations under this Section 11.05 shall be
made to the nearest cent or to the nearest 1/100th of a share, as the case may
be. Anything in this Section 11.05 to the contrary notwithstanding, the Company
shall be entitled to make such reductions in the Conversion Price, in addition
to those required by this Section 11.05, as it in its discretion shall determine
to be advisable in order that any stock dividend, subdivision of shares,
distribution of rights to purchase stock or securities, or distribution of
securities convertible into or exchangeable for stock hereafter made by the
Company to its shareholders shall not be taxable.
(f) Whenever the Conversion Price is adjusted as herein provided, (i)
the Issuer and the Company shall promptly file with the Trustee and the
Registrar a certificate of a firm of independent public accountants setting
forth the Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment and the manner of computing the
same, which certificate shall be conclusive evidence of the correctness of such
adjustment and (ii) a notice stating that the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall forthwith be given by the
Issuer and the Company to the Holders in the manner provided in Section 12.02.
Subject to TIA Section 315(a), (c) and (d), the Trustee and any conversion agent
shall be under no duty or responsibility with respect to any such certificate or
the certificate provided for in Section 11.10 except to exhibit the same from
time to time to any Holder of a Security desiring an inspection of such
certificate.
(g) In the event that at any time as a result of an adjustment made
pursuant to subsection (a) of this Section 11.05, the Holder of any Security
thereafter surrendered for conversion shall become entitled to receive any
shares of the Company other than shares of Common Stock, thereafter the
Conversion Price of such other shares so receivable upon conversion of any
Security shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to
Common Stock contained in this Article Eleven.
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Section 11.06. Notice of Certain Corporate Action.
In the event:
(a) the Company shall take any action which would require an adjustment
in the Conversion Price pursuant to Section 11.05(c); or
(b) the Company shall authorize the granting to the holders of its
Common Stock (as a class) of rights or warrants to subscribe for or purchase any
shares of stock of any class or of any other rights; or
(c) there shall be any capital reorganization or reclassification of
the Common Stock (other than a subdivision or combination of the outstanding
Common Stock and other than a change in the par value of the Common Stock), or
any consolidation or merger to which the Company is a party or any statutory
exchange of securities with another corporation and for which approval of any
shareholders of the Company is required, or any sale or transfer of all or
substantially all of the assets of the Company; or
(d) there shall be a voluntary or involuntary dissolution, liquidation
or winding-up of the Company; then the Issuer and the Company shall cause to be
filed with the Trustee and the Registrar, and shall cause to be given to the
Holders, in the manner provided in Section 12.02, at least 14 days prior to the
applicable date hereinafter specified, a notice stating (i) the date on which a
record is to be taken for the purpose of such distribution or rights, or, if a
record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such distribution or rights are to be determined, or
(ii) the date on which such reorganization, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding-up is expected to
become effective, and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up. Failure to give such notice or any defect therein
shall not affect the legality or validity of the proceedings described in
subsection (a), (b), (c) or (d) of this Section 11.06.
Section 11.07. Company to Provide Stock.
The Company covenants that it will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its authorized
but unissued shares of Common Stock or its issued shares of Common Stock held in
its treasury, or both, for the purpose of effecting conversions of Securities,
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the full number of shares of Common Stock deliverable upon the conversion of all
outstanding Securities not theretofore converted. For purposes of this Section
11.07, the number of shares of Common Stock which shall be deliverable upon the
conversion of all outstanding Securities shall be computed as if at the time of
computation all outstanding Securities were held by a single Holder.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value (if any) of the shares of Common Stock
deliverable upon conversions of the Securities, the Company will take any
corporate action which may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and non-assessable
shares of Common Stock at such adjusted Conversion Price.
The Company will endeavor to list the shares of Common Stock required
to be delivered upon conversion of Securities prior to such delivery upon each
national securities exchange, if any, upon which the outstanding Common Stock is
listed at the time of such delivery.
Prior to the delivery of any securities which the Company shall be
obligated to deliver upon conversion of the Securities, the Company will
endeavor to comply with all federal and state laws and regulations thereunder
requiring the registration of such securities with, or any approval of or
consent to the delivery thereof by, any governmental authority.
Section 11.08. Taxes on Conversions.
The Issuer and/or the Company will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
shares of Common Stock on conversions of Securities pursuant hereto; provided,
however, that neither the Issuer nor the Company shall be required to pay any
tax which may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of the Holder of
the Securities to be converted and no such issue or delivery shall be made
unless and until the person requesting such issue or delivery has paid to the
Issuer and/or the Company the amount of any such tax or has established, to the
satisfaction of the Issuer and the Company, that such tax has been paid.
Section 11.09. Covenant as to Stock.
The Company covenants that all shares of Common Stock which may be
delivered upon conversions of Securities will upon delivery be duly and validly
issued and fully paid and non-assessable, free of all liens and charges and not
subject to any preemptive rights.
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Section 11.10. Consolidation or Merger.
Notwithstanding any other provision herein to the contrary, in case of
any consolidation or merger to which the Company is a party other than a merger
or consolidation in which the Company is the continuing corporation, or in case
of any sale or conveyance to another corporation of the property of the Company
as an entirety or substantially as an entirety, or in the case of any statutory
exchange of securities with another corporation (including any exchange effected
in connection with a merger of a third corporation into the Company), there
shall be no adjustments under Section 11.05 but the Holder of each Security then
outstanding shall have the right thereafter to convert such Security into the
kind and amount of securities, cash or other property which he would have owned
or have been entitled to receive immediately after such consolidation, merger,
statutory exchange, sale or conveyance had such Security been converted
immediately prior to the effective date of such consolidation, merger, statutory
exchange, sale or conveyance and in any such case, if necessary, appropriate
adjustment shall be made in the application of the provisions set forth in this
Article Eleven with respect to the rights and interests thereafter of the
Holders of the Securities, to the end that the provisions set forth in this
Article Eleven shall thereafter correspondingly be made applicable, as nearly as
may reasonably be, in relation to any shares of stock or other securities or
property thereafter deliverable on the conversion of the Securities. Any such
adjustment shall be made by and set forth in a supplemental indenture executed
by the Issuer, the Company and the Trustee and approved by a firm of independent
public accountants, evidenced by a certificate to that effect; and any
adjustment so approved shall for all purposes hereof conclusively be deemed to
be an appropriate adjustment.
The above provisions of this Section 11.10 shall similarly apply to
successive consolidations, mergers, statutory exchanges, sales or conveyances.
The Issuer shall give notice of the execution of such a supplemental
indenture to the Holders of Securities in the manner provided in Section 12.02
within 30 days after the execution thereof.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in such supplemental indenture relating
either to the kind or amount of shares of stock or securities or property
receivable by Holders upon the conversion of their Securities after any such
consolidation, merger, statutory exchange, sale or conveyance, or to any
adjustment to be made with respect thereto.
Section 11.11. Disclaimer of Responsibility for Certain Matters.
Neither the Trustee nor the Registrar shall at any time be under any
duty or responsibility to any Holder of Securities to determine whether any
facts exist which may require any adjustment of the Conversion Price, or with
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respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee nor the
Registrar shall be accountable with respect to the listing or registration
referred to in Section 11.07 or the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property, which may at any
time be issued or delivered upon the conversion of any Security; and neither the
Trustee nor the Registrar makes any representation with respect thereto. Neither
the Trustee nor the Registrar shall be responsible for any failure of the
Company to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property or to make any cash payment upon
the surrender of any Security for the purpose of conversion or, subject to TIA
Section 315(a), (c) and (d), to comply with any of the covenants contained in
this Article Eleven.
ARTICLE TWELVE
Miscellaneous
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA
or the TIA as amended after the date hereof, the required provision shall
control.
Section 12.02. Notices.
Any order, consent, notice or communication shall be sufficiently given
if in writing and delivered in Person or mailed by first class mail, postage
prepaid, addressed as follows:
if to the Issuer or any Guarantor:
Toll Brothers, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer
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with a copy to
Xxxx X. Xxxxxxx, Esquire
Wolf, Block Xxxxxx and Xxxxx-Xxxxx LLP
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
if to the Trustee:
Bank One Trust Company, N.A.
0000 Xxxxxxx Xxxxxxx
Xxxxx XX0-0000
Xxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxxxx, Corporate Trust Administration
The Issuer, any Guarantor or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telecopier, or any courier guaranteeing overnight delivery (i) if to a
Holder, at the most current address set forth on the records of the Registrar
under this Indenture or (ii) if to the Issuer, the Guarantors or the Trustee,
initially at the address set forth in this Section 12.02 thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 12.02.
All such notices and communications 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
is acknowledged, if telecopied; and on the next business day if timely delivered
to an air courier guaranteeing overnight delivery. Copies of all such notices,
demands or other communications shall be concurrently delivered by the Person
giving the same to the Trustee, at the address specified in this Section 12.02.
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. If a notice or
communication is mailed in the manner provided in this Section, it is duly
given, whether or not the addressee receives it, except that notice to the
Trustee shall only be effective upon receipt thereof by the Trustee.
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Section 12.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The Issuer,
the Guarantors, the Trustee, the Registrar and anyone else shall have the
protection of TIA ss. 312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take
any action under this Indenture, the Issuer shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 12.05) stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 12.05) stating that, in the opinion of such
counsel, all such conditions precedent and covenants, compliance with
which constitutes a condition precedent, if any, provided for in this
Indenture relating to the proposed action or inaction, have been
complied with and that any such section does not conflict with the
terms of the Indenture.
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
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(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules for its
functions.
Section 12.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday, a legal holiday or a day on
which banking institutions in New York, New York are not required to be open. 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 for the intervening period. A Business Day is any day
other than a Legal Holiday.
Section 12.08. Governing Law.
The laws of the State of New York shall govern this Indenture, the
Securities of each Series and the Guarantees.
Section 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Issuer, the Company or a Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
Section 12.10. No Recourse Against Others.
All liability described in paragraph 13 of the Initial Securities or
paragraph 12 of the Exchange Securities and the Private Exchange Securities of
any director, officer, employee or stockholder, as such, of the Issuer is waived
and released.
Section 12.11. Successors and Assigns.
All covenants and agreements of the Issuer or the Guarantors in this
Indenture and the Securities shall bind their respective successors and assigns.
All agreements of the Trustee in this Indenture shall bind its successors and
assigns.
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Section 12.12. Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 12.13. Severability.
In case any one or more of the provisions contained in this Indenture
or in the Securities of a Series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Securities.
Section 12.14. Counterparts.
This Indenture may be executed in any number of counterparts, all of
which shall together constitute one and the same instrument. This Indenture
shall become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.
SIGNATURES
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed, all as of the date first above written.
TOLL BROTHERS FINANCE CORP.,
as Issuer
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
TOLL BROTHERS, INC.,
as a Guarantor
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
THE OTHER GUARANTORS NAMED ON SCHEDULE A HERETO,
as Guarantors
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Officer
S-1
SCHEDULE A
Toll Holdings, Inc. (DE), Amwell Chase, Inc. (DE), BBCC Investments, Inc. (PA),
Brentwood Investments I, Inc. (TN), Bunker Hill Estates, Inc. (DE),
Chesterbrooke, Inc. (DE), Connecticut Land Corp. (DE), Daylesford Development
Corp. (DE), Eastern States Engineering, Inc. (DE), Edmunds-Toll Construction
Company (AZ), Fairway Valley, Inc. (DE), First Brandywine Management Del. Corp.
(DE), First Huntingdon Finance Corp. (DE), Franklin Farms G.P., Inc. (DE),
Frenchman's Reserve Country Club, Inc. (FL), HQZ Acquisitions, Inc. (MI), MA
Limited Land Corporation (DE), Maple Point, Inc. (DE), Maryland Limited Land
Corporation (DE), Xxxxxx Country Club, Inc. (FL), Xxxxxxxx Farm, Inc. (PA), The
Xxxxxxxxx Building Companies, Inc. (MI), The Xxxxxxxxx Construction Company
(MI), Xxxxxxxxx Development Company, Inc. (MI), SH Homes Corporation (MI), SI
Investment Corporation (MI), Springfield Chase, Inc. (DE), Stewarts Crossing,
Inc. (DE), Tampa Realty Associates, Inc. (FL), Tenby Xxxx, Inc. (DE), Toll AZ GP
Corp. (DE), Toll Bros., Inc. (PA), Toll Bros., Inc. (DE), Toll Bros., Inc. (TX),
Toll Bros. of Arizona, Inc. (AZ), Toll Bros. of North Carolina, Inc. (NC), Toll
Bros. of North Carolina II, Inc. (NC), Toll Bros. of North Carolina III, Inc.
(NC), Toll Brothers Real Estate, Inc. (PA), Toll AZ GP Corp. (DE), Toll CA GP
Corp. (CA), Toll CO GP Corp. (CO), Toll Corp. (DE), Toll Finance Corp. (DE),
Toll FL GP Corp. (FL), Toll IL GP Corp. (IL), Toll Land Corp. Xx. 0 (XX), Xxxx
Xxxx Xxxx. Xx. 00 (XX), Toll Land Corp. Xx. 00 (XX), Xxxx Xxxx Xxxx. Xx. 00
(XX), Toll Land Corp. Xx. 00 (XX), Xxxx Xxxx Xxxx. Xx. 00 (XX), Toll Land Corp.
Xx. 00 (XX), Xxxx Xxxx Xxxx. Xx. 00 (XX), Toll Land Corp. Xx. 00 (XX), Xxxx Xxxx
Xxxx. Xx. 00 (XX), Toll Land Corp. No. 51 (DE), Toll Land Corp. Xx. 00 (XX),
Xxxx Xxxx Xxxx. Xx. 00 (XX), Toll Land Corp. Xx. 00 (XX), Xxxx Xxxx Xxxx. Xx. 00
(XX), Toll Land Corp. Xx. 00 (XX), Xxxx Xxxx Xxxx. Xx. 00 (XX), Toll Land Corp.
Xx. 00 (XX), Xxxx Xxxx Xxxx. Xx. 00 (XX), Toll Management AZ Corp. (DE), Toll
Management VA Corp. (DE), Toll MI GP Corp. (MI), Toll NH GP Corp. (NH), Toll NV
GP Corp. (NV), Toll NC GP Corp. (NC), Toll OH GP Corp. (OH), Toll PA GP Corp.
(PA), Toll PA II GP Corp. (PA), Toll Peppertree, Inc. (NY), Toll Philmont
Corporation (DE), Toll Realty Holdings Corp. I (DE), Toll Realty Holdings Corp.
II (DE), Toll Realty Holdings Corp. III (DE), Toll RI GP Corp. (RI), Toll SC GP
Corp. (SC), Toll TN GP Corp. (TN), Toll TX GP Corp. (DE), Toll VA GP Corp. (DE),
Toll Wood Corporation (DE), Toll YL, Inc. (CA), Valley Forge Conservation
Holding GP Corp. (PA), Xxxxxx Xxxxx, Inc. (DE), Windsor Development Corp. (PA),
Xxxxx Xxxxx, L.P. (PA), Audubon Ridge, L.P. (PA), BBCC Golf, L.P. (PA), BBCC
Investments, LP (PA), Beaumont Chase, L.P. (PA), Belmont Land, L.P. (VA),
Bennington Xxxx, X.X. (NJ), Xxxxxxxx Xxxxx, X.X. (NJ), Binks Estates Limited
Partnership (FL), The Bird Estate Limited Partnership (MA), Blue Xxxx Country
Club, L.P. (PA), Branchburg Ridge, L.P. (NJ), Brandywine River Estates, L.P.
(PA), Brass Castle Estates, L.P. (NJ), Brentwood Investments, L.P. (TN), Bridle
Estates, L.P. (PA), Broad Run Associates, L.P. (PA), Buckingham Xxxxx, X.X.
(PA), Xxxxx Xxxxxx Xxxxxxx Xxxx, X.X. (XX), XX Xxxxxxx Limited Partnership (MA),
Calabasas View, L.P. (CA), Charlestown Hills, L.P. (NJ), Cheltenham Estates
Limited Partnership (MI), Chesterbrooke Limited Partnership (NJ), Chesterfield
Xxxx, X.X. (NJ), Cobblestones at Thornbury, L.P. (PA), Cold Spring Xxxx, X.X.
(PA), Xxxxxxx-Toll Limited Partnership (NV), Concord Chase, L.P. (PA), Xxxxxxxxx
Xxxxx, L.P. (NY), Delray Limited Partnership (FL), Dolington Estates, L.P. (PA),
Dominion Country Club, L.P. (VA), Eagle Farm Limited Partnership (MA),
Edmunds-Toll Limited Partnership (AZ), Eldorado Country Estates, L.P. (TX),
Estates at Autumnwood, L.P. (DE), The Estates at Xxxxxx Xxxxx Limited
Partnership (MD), Estates at Coronado Pointe, L.P. (CA), The Estates at Potomac
Xxxx Limited Partnership (MD), Estates at Princeton Junction, L.P. (NJ), Estates
at Rivers Edge, L.P. (NJ), Estates at San
Xxxx Capistrano, L.P. (CA), The Estates at Summit Chase, L.P. (CA), Fairfax
Investment, L.P. (CA), Fairfax Station Xxxx, X.X. (VA), Fair Lakes Chase, L.P.
(VA), Fairway Mews Limited Partnership (NJ), Farmwell Xxxx, X.X. (VA), First
Brandywine Partners, L.P. (DE), Xxxxxxxx Xxxx Limited Partnership (MA), Freehold
Chase, L.P. (NJ), Great Falls Xxxx, X.X. (VA), Great Falls Xxxxx, X.X. (VA),
Greens at Waynesborough, L.P. (PA), Greenwich Chase, L.P. (NJ), Greenwich
Station, L.P. (NJ), Hockessin Chase, L.P. (DE), Holland Ridge, L.P. (NJ),
Holliston Xxxx Limited Partnership (MA), Hopewell Xxxx, X.X. (NJ), Xxxxxxx Farm
Limited Partnership (MA), Hunter Mill, L.P. (VA), Hunterdon Chase, L.P. (NJ),
Hunterdon Ridge, L.P. (NJ), Huntington Estates Limited Partnership (CT), Xxxxxx
Ridge Limited Partnership (MD), Independence Hill, L.P. (NJ), Kensington Xxxxx
Limited Partnership (MA), Knolls of Birmingham, L.P. (PA), Lakeridge, L.P. (PA),
Lakeway Hills Properties, L.P. (TX), Laurel Creek, L.P. (NJ), Loudoun Valley
Associates, L.P. (VA), Mallard Lakes, L.P. (TX), Manalapan Xxxx, X.X. (TX),
Maple Creek Limited Partnership (MI), Marshallton Chase, L.P. (PA), Mill Road
Estates, L.P. (PA), Xxxxxxxxxx Xxxxx, L.P. (NJ), Xxxxxxxxxx Crossing, L.P. (NJ),
Xxxxxxxxxx Oaks, L.P. (NJ), Moorestown Xxxx, X.X. (NJ), Mount Kisco Chase, L.P.
(NY), NC Country Club Estates Limited Partnership (NC), Newport Ridge Limited
Partnership (MI), Newtown Chase Limited Partnership (CT), Northampton Crest,
L.P. (PA), Northampton Preserve, L.P. (PA), Patriots, L.P. (NJ), The Preserve
Limited Partnership (NC), The Preserve at Annapolis Limited Partnership (MD),
The Preserve at Boca Raton Limited Partnership (FL), Preston Village Limited
Partnership (NC), Princeton Xxxx, X.X. (NJ), Providence Limited Partnership
(NC), Providence Xxxx, X.X. (PA), Providence Plantation Limited Partnership
(NC), Regency at Dominion Valley, L.P. (VA), River Crossing, L.P. (PA),
Rochester Hills Village Associates, L.P. (MI), Rolling Greens, L.P. (NJ), Rose
Hollow Crossing Associates (PA), Rose Tree Manor, L.P. (PA), Seaside Estates
Limited Partnership (FL), Shrewsbury Xxxx Limited Partnership (MA),
Xxxxxxxxx-Toll Limited Partnership (MI), Xxxxxx Xxxxx, L.P. (NY), Somerset
Development Limited Partnership (NC), South Riding, L.P. (VA), South Riding
Partners, L.P. (VA), Southlake Xxxxx, X.X. (TX), Southport Landing Limited
Partnership (CT), Springton Pointe, L.P. (PA), Stone Mill Estates, L.P.(PA),
Xxxxxx Xxxx Estates, L.P. (PA), Swedesford Chase, L.P. (PA), TBI/Heron Bay
Limited Partnership (FL), TBI/Naples Limited Partnership (FL), TBI/Palm Beach
Limited Partnership (FL), Tenby Xxxx, X.X. (DE), Xxxxxxxxx Xxxxx, X.X. (PA),
Timber Ridge Investment Limited Partnership (MI), Toll at Brier Creek Limited
Partnership (NC), Toll at Daventry Park, L.P. (OH), Toll at Xxxxx Ranch, L.P.
(CA), Toll at Potomac Xxxxx X.X. (VA), Toll at Princeton Walk, L.P. (NJ), Toll
at Westlake, L.P. (NJ), Toll at Whippoorwill, L.P. (NY), Toll Bros. of
Tennessee, L.P. (TN), Toll Brothers Finance Co. (NJ), Toll Brothers Maryland II
Limited Partnership (MD), Toll CA, L.P. (CA), Toll CA II, L.P. (CA), Toll CA
III, L.P. (CA), Toll CA IV, L.P. (CA), Toll CA V, L.P. (CA), Toll CA VI, L.P.
(CA), Toll CO, L.P. (CO), Toll CT Limited Partnership (CT), Toll CT II Limited
Partnership (CT), Toll CT Westport Limited Partnership (CT), Toll-Dublin, L.P.
(CA), Toll Estero Limited Partnership (FL), Toll FL Limited Partnership (FL),
Toll Ft. Xxxxx Limited Partnership (FL), Toll IL, L.P. (IL), Toll IL II, L.P.
(IL), Toll IL III, L.P. (IL), Toll IL HWCC, L.P. (IL), Toll Land Limited
Partnership (CT), Toll Land IV Limited Partnership (NJ), Toll Land V Limited
Partnership (NY), Toll Land VI Limited Partnership (NY), Toll Land VII Limited
Partnership (NY), Toll Land VIII Limited Partnership (NY), Toll Land IX Limited
Partnership (VA), Toll Land X Limited Partnership (VA), Toll Land XI Limited
Partnership (NJ), Toll Land XII Limited Partnership (NY), Toll Land XIII Limited
Partnership (NY), Toll Land XIV Limited Partnership (NY), Toll Land XV Limited
Partnership (VA), Toll Land XVI Limited Partnership
-2-
(NJ), Toll Land XVII Limited Partnership (CT), Toll Land XVIII Limited
Partnership (CT), Toll Land XIX Limited Partnership (CA), Toll Land XX Limited
Partnership (CA), Toll Land XXI Limited Partnership (VA), Toll Land XXII Limited
Partnership (CA), Toll Land XXIII Limited Partnership (CA), Toll Land XXV
Limited Partnership (NJ), Toll Land XXVI Limited Partnership (OH), Toll Land
XXVII Limited Partnership (DE), Toll MD Limited Partnership (MD), Toll MD II
Limited Partnership (MD), Toll MD III Limited Partnership (MD), Toll MD IV
Limited Partnership (MD), Toll MI Limited Partnership (MI), Toll MI II Limited
Partnership (MI), Toll MI III Limited Partnership (MI), Toll Naples Limited
Partnership (FL), Toll Naval Associates (PA), Toll NH Limited Partnership (NH),
Toll NJ, L.P. (NJ), Toll NJ II, L.P. (NJ), Toll NJ III, L.P. (NJ), Toll NJ IV,
L.P. (NJ), Toll NJ V, L.P. (NJ), Toll NJ VI, L.P. (NJ), Toll Northville Limited
Partnership (MI), Toll Northville Golf Limited Partnership (MI), Toll NV Limited
Partnership (NV), Toll PA, L.P. (PA), Toll PA II, L.P. (PA), Toll PA III, L.P.
(PA), Toll PA IV, L.P. (PA), Toll PA V, L.P. (PA), Toll PA VI, L.P. (PA), Toll
PA VII, L.P. (PA), Toll Peppertree, L.P. (NY), Toll Real Estate Holdings I
Limited Partnership (MI), Toll Real Estate Holdings II Limited Partnership (MI),
Toll Reston Associates, L.P. (DE), Toll RI, L.P. (RI), Toll SC, L.P. (SC), Toll
TX, L.P. (TX), Toll TX II, L.P. (TX), Toll VA, L.P. (VA), Toll VA II, L.P. (VA),
Toll VA IV, L.P. (VA), Toll VA V, L.P. (VA), Toll Venice Limited Partnership
(FL), Toll YL, L.P. (CA), Toll YL II, L.P. (CA), Trumbull Xxxx Limited
Partnership (CT), Uwchlan Xxxxx, X.X. (PA), Valley Forge Conservation Holding,
L.P. (PA), Valley Forge Xxxxx, X.X. (PA), Valley View Estates Limited
Partnership (MA), Xxxxxx Preserve Limited Partnership (MI), Warwick Xxxxxx, X.X.
(PA), Warwick Xxxxx, X.X. (PA), Washington Xxxxxx Development, L.P. (NJ), West
Amwell Limited Partnership (NJ), Whiteland Xxxxx, X.X. (PA), Wichita Chase, L.P.
(TX), Willowdale Crossing, L.P. (PA), Xxxxxx Concord, L.P. (TN), Woodbury
Estates, L.P. (NJ), The Xxxxx at Highland Lakes, L.P. (OH), The Xxxxx at Long
Valley, L.P. (NJ), The Xxxxx at Xxxxx Xxxxxx Limited Partnership (MD),
Wrightstown Xxxx, X.X. (PA), Yardley Estates, L.P. (PA), Belmont Country Club I
LLC (VA), Belmont Country Club II LLC (VA), Brier Creek Country Club I LLC (NC),
Brier Creek Country Club II LLC (NC), Big Branch Overlook L.L.C. (MD), C.B.A.Z.
Construction Company LLC (AZ), C.B.A.Z. Holding Company LLC (DE), Creeks Farm
L.L.C. (MD), Dominion Valley Country Club I LLC (VA), Dominion Valley Country
Club II LLC (VA), ELB Investments I LLC (IL), ELB Investments II LLC (IL), FC
Investments I LLC (MA), FC Investments II LLC (MA), Feys Property LLC (MD),
First Brandywine LLC I (DE), First Brandywine LLC II (DE), Frenchman's Reserve
Realty, LLC (FL), Golf I Country Club Estates at Moorpark LLC (CA), Golf II
Country Club Estates at Moorpark LLC (CA), High Pointe at Hopewell, LLC (NJ),
Hunts Bluff LLC (MD), KTM Venture, LLC (IL), Long Xxxxxxx TBI, LLC (MD), Xxxxxx
County Improvement Association LLC (FL), Xxxxxx Realty, L.L.C. (FL), Mountain
View Country Club I LLC (CA), Mountain View Country Club II LLC (CA), Naples TBI
Realty, LLC (FL), Naples Lakes Country Club, L.L.C. (FL), Northville Hills Golf
Club LLC (MI), Northville Lake Village Apartments Limited Liability Company
(MI), Palm Cove Golf & Yacht Club I LLC (FL), Palm Cove Golf & Yacht Club II LLC
(FL), Palm Cove Marina I LLC (FL), Palm Cove Xxxxxx XX LLC (FL), Regency at
Denville LLC (NJ), Regency at Dominion Valley LLC (VA), The Regency Golf Club I
LLC (VA), The Regency Golf Club II LLC (VA), RiverCrest Sewer Company, LLC (PA),
Sapling Ridge, LLC (MD), South Riding Realty LLC (VA), SR Amberlea LLC (VA),
Toll Brothers Realty Michigan II LLC (MI), Toll Cedar Xxxx LLC (VA),
Toll-Dublin, LLC (CA), Toll Equipment, L.L.C. (DE), Toll NJ I, L.L.C. (NJ), Toll
NJ II, L.L.C. (NJ), Toll NJ X, LLC (NJ), Toll Realty L.L.C. (FL), Toll Reston
Associates, L.L.C. (DE), Toll VA L.L.C. (DE), Toll VA III L.L.C. (VA), Virginia
Construction Co. I, LLC (VA), Virginia Construction Co. II, LLC (VA), TB
Proprietary Corp. (DE), First Brandywine Finance Corp. (DE), First Brandywine
Investment Corp. II (DE), First Brandywine Investment Corp. III (DE), Toll Bros.
of Tennessee, Inc. (DE), Toll VA Member Two, Inc. (DE), TB Proprietary LP, Inc.
(DE)
-3-
Exhibit A
No. CUSIP No.: _______
[Title of Security]
TOLL BROTHERS FINANCE CORP.
a Delaware corporation
promises to pay to
or registered assigns
the principal sum of [Dollars](1) on
[Title of Security]
Interest Payment Dates: and
Record Dates: and
Authenticated: Dated:
TOLL BROTHERS FINANCE CORP.
[Seal]
By
---------------------------
Title:
By
--------------------------
Title:
BANK ONE TRUST COMPANY, N.A., as
Trustee, certifies that this is one of the Securities
referred to in the within mentioned Indenture.
By:
-----------------------------------
Authorized Signatory
-----------------
(1) Or other currency. Insert corresponding provisions on reverse side of
Security in respect of foreign currency denomination or interest payment
requirement.
A-1
TOLL BROTHERS FINANCE CORP.
[Title of Security], Series A
1. Interest.
TOLL BROTHERS FINANCE CORP. (the "Issuer"), a Delaware corporation,
promises to pay interest on the principal amount of this Security at the rate
per annum shown above. The Issuer will pay interest semiannually on
__________________ and ______________ of each year, commencing on
__________________, until the principal is paid or made available for payment.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid,
from _______________, 20 , provided that, if there is no existing Default in the
payment of interest and if this Security is authenticated between a Record Date
referred to on the face hereof and the next succeeding interest payment date,
interest shall accrue from such interest payment date. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The Issuer will pay interest on the Securities (except defaulted interest, if
any, which will be paid on such special payment date to Holders of record on
such special Record Date as may be fixed by the Issuer) to the Persons who are
registered Holders of Securities at the close of business on the [Insert Record
Dates] (capitalized terms not defined herein have the meanings given to those
terms in the Indenture). Holders must surrender Securities to a Paying Agent to
collect principal payments. The Issuer will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts.
3. Paying Agent and Registrar.
Initially, Bank One Trust Company, N.A. (the "Trustee") will act as
Paying Agent and Registrar. The Issuer may change or appoint any Paying Agent,
Registrar or co-Registrar without notice. Toll Brothers, Inc. (the "Company") or
any of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Registrar or co-Registrar.
4. Indenture.
The Issuer issued the Securities under an Indenture dated as of
November 22, 2002 ("Indenture"), among the Issuer, the Company, the other
Guarantors and the Trustee. The terms of the Securities and the Guarantee
include those stated in the Indenture (including those terms set forth in the
Authorizing Resolution or supplemental indenture pertaining to the Securities of
the Series of which this Security is a part) and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 ("TIA") as in effect
on the date of the Indenture. The Securities and the Guarantee are subject to
all such terms, and Holders are referred to the Indenture and the TIA for a
statement of them.
A-2
The Issuer will furnish to any Holder upon written request and without
charge a copy of the Indenture and the applicable Authorizing Resolutions or
supplemental indenture. Requests may be made to: Toll Brothers Finance Corp.,
c/o Toll Brothers, Inc., 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx
00000, Attention: Chief Financial Officer.
5. Optional Redemption.(2)
The Issuer may redeem the Securities at any time on or after
______________, ____, in whole or in part, at the following redemption prices
(expressed as a percentage of their principal amount) together with interest
accrued and unpaid to the date fixed for redemption:
If redeemed during the
twelve-month period
commencing on ___________ and
ending on ___________ in each
of the following years Percentage
[Insert provisions relating to redemption at option of Holders, if any]
If less than all the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed, if the Securities are listed on a national
securities exchange, in accordance with the rules of such exchange, or if the
Securities are not so listed, on either a pro rata basis or by lot or by such
method as the Trustee shall deem fair and appropriate. The Trustee shall make
the selection from Securities outstanding and not previously called for
redemption. Securities in denominations of $1,000 may only be redeemed in whole.
The Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Securities that have denominations larger
than $1,000. Notice of redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each Holder whose Securities are to
be redeemed at the registered address of such Holder. On and after the
redemption dates interest ceases to accrue on the Securities or portions thereof
called for redemption, provided that if the Issuer shall default in the payment
of such Securities at the redemption price together with accrued interest,
interest shall continue to accrue at the rate borne by the Securities.
----------
(2) If applicable.
A-3
6. Mandatory Redemption.(3)
The Issuer shall redeem __ % of the aggregate principal amount of
Securities originally issued under the Indenture on each of ________, which
redemptions are calculated to retire __% of the Securities originally issued
prior to maturity. Such redemptions shall be made at a redemption price equal to
100% of the principal amount thereof, together with accrued interest to the
redemption date. The Issuer may reduce the principal amount of Securities to be
redeemed pursuant to this Paragraph 6 by the principal amount of any Securities
previously redeemed, retired or acquired, otherwise than pursuant to this
Paragraph 6, that the Issuer has delivered to the Trustee for cancellation and
not previously credited to the Issuer's obligations under this Paragraph 6. Each
such Security shall be received and credited for such purpose by the Trustee at
the redemption price and the amount of such mandatory redemption payment shall
be reduced accordingly.
7. Registration Rights Agreement.
The Holder of this Security is entitled to the benefits of a
Registration Rights Agreement, dated as of [_________], among the Issuer, the
Company and the Initial Purchasers named therein (as such may be amended from
time to time, the "Registration Rights Agreement"). Capitalized terms used in
this Section but not defined herein have the meanings assigned to them in the
Registration Rights Agreement.
If (i) within [___] days after the Issue Date, the Exchange Offer
Registration Statement has not been filed with the Commission; (ii) within [___]
days after the Issue Date, the Exchange Offer Registration Statement has not
been declared effective; (iii) within [___] days after Exchange Offer
Registration Statement has been declared effective, the Exchange Offer has not
been consummated; (iv) within the latter of [___] days after the Issue Date or
the [__]th day after obligation of the Issuer and the Company to file the Shelf
Registration Statement arises, the Shelf Registration Statement has not been
filed; (v) within [__] days after the Issue Date(or [___] days after request by
any Initial Purchaser) the Shelf Registration Statement has not been declared
effective; (vi) after the Shelf Registration Statement has been declared
effective the Issuer and the Company fail to keep the Shelf Registration
Statement continuously effective for a period of two years (subject to the
exceptions set forth in the Registration Rights Agreement) in connection with
resales of Securities, the Exchange Securities or the Private Exchange
Securities in accordance with and during the periods specified in Sections [2]
and [3] of the Registration Rights Agreement and (vii) the effective Exchange
----------
(3) If applicable.
A-4
Securities Registration Statement ceases to be effective or usable for the
periods specified in the Registration Rights Agreement (each such event referred
to in clauses (i) through (vii), a "Registration Default"), additional interest
("Additional Interest") will accrue on the Securities, the Exchange Securities
and the Private Exchange Securities from and including the date on which any
such Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured. Additional Interest will accrue at a rate
equal to 0.25% per annum of the aggregate principal amount of the Securities
during the 90-day period immediately following the occurrence of any
Registration Default and shall increase by 0.25% per annum for each subsequent
90-day period during which such Registration Default continues, but in no event
shall such Additional Interest exceed 0.[__]% per annum.
8. Denominations, Transfer, Exchange.
The Securities are in registered form only without coupons in
denominations of $1,000(4) and integral multiples of $1,000. A Holder may
transfer or exchange Securities by presentation of such Securities to the
Registrar or a co-Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Securities of other
denominations. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
transfer or exchange any Security selected for redemption, except the unredeemed
part thereof if the Security is redeemed in part, or transfer or exchange any
Securities for a period of 15 days before a selection of Securities to be
redeemed.
9. Persons Deemed Owners.
The registered Holder of this Security shall be treated as the owner of
it for all purposes.
10. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent will pay the money back to the Issuer at
its request. After that, Holders entitled to the money must look to the Issuer
for payment unless an abandoned property law designates another Person.
----------
(4) If applicable. Insert different or additional denominations and multiples.
A-5
11. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture, the Guarantee or the
Securities may be amended or supplemented by the Issuer with the consent of the
Holders of at least a majority in principal amount of the outstanding Securities
and any past default or compliance with any provision relating to the Securities
may be waived in a particular instance with the consent of the Holders of a
majority in principal amount of the outstanding Securities. Without the consent
of any Holder, the Issuer may amend or supplement the Indenture, the Guarantee
or the Securities to cure any ambiguity, omission, defect or inconsistency,
(provided such action does not adversely affect the rights of the Holders), to
evidence the succession of another Person to the Issuer or any Guarantor, to add
covenants of the Issuer or of the Guarantors under Article Four of the Indenture
for the benefit of the Holders or to surrender rights or powers conferred upon
the Issuer or the Guarantors by the Indenture, to add Events of Default for the
benefit of the Holders, to change or eliminate any provisions of the Indenture,
(provided such change or elimination shall become effective only when none of
the Securities are outstanding), to add Guarantors, to provide for the
acceptance of appointment by a successor Trustee or facilitate the
administration of the trusts under the Indenture by more than one Trustee, to
close the Indenture as to authentication and delivery of additional Securities,
to supplement Indenture provisions to permit or facilitate defeasance and
discharge of the Securities, (provided such action does not adversely affect the
rights of the Holders), to provide that specific Indenture provisions shall not
apply to an unissued Series of Securities, to provide for uncertificated
Securities in addition to or in place of certificated Securities, to create a
Series and establish its terms, to remove a Guarantor, other than the Company,
which, in accordance with the terms of the Indenture, ceases to be liable in
respect of the Guarantee, or to make any other change, (provided such action
does not adversely affect the rights of any Holder).
12. Trustee Dealings With Company.
Bank One Trust Company, N.A., the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
13. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Issuer
shall not have any liability for any obligations of the Issuer under the
Securities or 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
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
A-6
14. Discharge of Indenture.
The Indenture contains certain provisions pertaining to defeasance,
which provisions shall for all purposes have the same effect as if set forth
herein.
15. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
16. 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).
A-7
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below:
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address, and zip code)
and irrevocably appoint
agent to transfer this Security 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 other side of this Security)
SIGNATURE GUARANTEE
-------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the Commission
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act") covering resales of this Security (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) two years from the Issue Date, the undersigned confirms that
it has not utilized any general solicitation or general advertising in
connection with the transfer:
[Check One]
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under the Securities Act
of 1933, as amended; or
(3) __ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended) that has furnished to the Trustee a signed letter containing
certain representations and agreements (the form of which letter can be
obtained from the Trustee); or
(4) __ outside the United States to a "foreign person" in compliance with Rule
904 of Regulation S under the Securities Act of 1933, as amended; or
(5) __ pursuant to the exemption from registration provided by Rule 144 under
the Securities Act of 1933, as amended; or
(6) __ pursuant to an effective registration statement under the Securities
Act of 1933, as amended; or
(7) __ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended;
and unless the box below is checked, the undersigned confirms that such Security
is not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
|_| The transferee is an Affiliate of the Company.
Unless one of the items is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any Person
other than the registered Holder thereof; provided, however, that if item (3),
(4), (5) or (7) is checked, the Issuer or the Trustee may require, prior to
registering any such transfer of the Securities, in their sole discretion, such
written legal opinions, certifications (including an investment letter in the
case of box (3) or (7)) and other information as the Trustee or the Issuer has
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, as amended.
If none of the foregoing items are checked, the Trustee or Registrar
shall not be obligated to register this Security in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.14 of the Indenture shall have
been satisfied.
Dated: ____________________ Signed:
--------------------------------
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee: _____________________________________
(SIGNATURE MUST BE GUARANTEED)
SIGNATURE GUARANTEE
-------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Issuer as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ______________ ______________________________________________
NOTICE: To be executed by an executive officer
[FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE]
GUARANTEE
The Guarantors listed on Schedule I, attached hereto (the
"Guarantors"), have unconditionally guaranteed, jointly and severally (such
guarantee by each Guarantor being referred to herein as the "Guarantee") (i) the
due and punctual payment of the principal of and interest on the Securities,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on the overdue principal and interest, if any, on the Securities, to
the extent 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 set
forth in Article Nine of the Indenture and (ii) in case of any extension of time
of payment or renewal of any Securities or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
No past, present or future stockholder, partner, member, officer,
director, manager, general partner, employee or incorporator, as such, of any of
the Guarantors shall have any liability under the Guarantee by reason of such
Person's status as stockholder, partner, member, officer, director, manager,
general partner, employee or incorporator. Each holder of a Security by
accepting a Security waives and releases all such liability. This waiver and
release are part of the consideration for the issuance of the Guarantee.
Each holder of a Security by accepting a Security agrees that any
Guarantor other than Toll Brothers, Inc. (the "Company") shall have no further
liability with respect to its Guarantee if such Guarantor otherwise ceases to be
liable in respect of its Guarantee in accordance with the terms of the
Indenture.
The Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Securities upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
TOLL BROTHERS, INC.
By:
----------------------------------
Title:
--------------------------
THE GUARANTORS LISTED ON
SCHEDLULE I, ATTACHED HERETO
By:
----------------------------------
Title:
--------------------------
Exhibit B
No. CUSIP No.: _______
[Title of Security]
TOLL BROTHERS FINANCE CORP.
a Delaware corporation
promises to pay to
or registered assigns
the principal sum of [Dollars](5) on
[Title of Security]
Interest Payment Dates: and
Record Dates: and
Authenticated: Dated:
TOLL BROTHERS FINANCE CORP.
[Seal]
By
--------------------------
Title:
By
--------------------------
Title:
BANK ONE TRUST COMPANY, N.A., as
Trustee, certifies that this is one of the Securities
referred to in the within mentioned Indenture.
By:
-----------------------------------
Authorized Signatory
----------
(5) Or other currency. Insert corresponding provisions on reverse side of
Security in respect of foreign currency denomination or interest payment
requirement.
B-1
TOLL BROTHERS FINANCE CORP.
[Title of Security]
1. Interest.
TOLL BROTHERS FINANCE CORP. (the "Issuer"), a Delaware corporation,
promises to pay interest on the principal amount of this Security at the rate
per annum shown above. The Issuer will pay interest semiannually on
__________________ and ______________ of each year, commencing on
________________ until the principal is paid or made available for payment.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid,
from _______________, 20 , provided that, if there is no existing Default in the
payment of interest and if this Security is authenticated between a Record Date
referred to on the face hereof and the next succeeding interest payment date,
interest shall accrue from such interest payment date. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The Issuer will pay interest on the Securities (except defaulted
interest, if any, which will be paid on such special payment date to Holders of
record on such special Record Date as may be fixed by the Issuer) to the Persons
who are registered Holders of Securities at the close of business on the [Insert
Record Dates] immediately preceding the interest payment date (capitalized terms
not defined herein have the meanings given to those terms in the Indenture).
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Issuer will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts.
3. Paying Agent and Registrar.
Initially, Bank One Trust Company, N.A. (the "Trustee") will act as
Paying Agent and Registrar. The Issuer may change or appoint any Paying Agent,
Registrar or co-Registrar without notice. Toll Brothers, Inc. (the "Company") or
any of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Registrar or co-Registrar.
4. Indenture.
The Issuer issued the Securities under an Indenture dated as of
November 22, 2002 ("Indenture"), among the Issuer, the Company , the other
Guarantors and the Trustee. This Security is either one of the duly authorized
Exchange Securities or one of the duly authorized Private Exchange Securities,
as the case may be, of the Issuer designated as its [ ]% Senior Notes due [ ]
(the "Exchange Securities" and the "Private Exchange Securities", respectively).
The terms of the Securities and the Guarantee include those stated in the
B-2
Indenture (including those terms set forth in the Authorizing Resolution or
supplemental indenture pertaining to the Securities of the Series of which this
Security is a part) and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 ("TIA") as in effect on the date of the Indenture.
The Securities and the Guarantee are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of them.
The Issuer will furnish to any Holder upon written request and without
charge a copy of the Indenture and the applicable Authorizing Resolution or
supplemental indenture. Requests may be made to: Toll Brothers Finance Corp.,
c/o Toll Brothers, Inc., 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx
00000, Attention: Chief Financial Officer.
5. Optional Redemption.(6)
The Issuer may redeem the Securities at any time on or after
______________, ____, in whole or in part, at the following redemption prices
(expressed as a percentage of their principal amount) together with interest
accrued and unpaid to the date fixed for redemption:
If redeemed during the
twelve-month period
commencing on ___________ and
ending on ___________ in each
of the following years Percentage
[Insert provisions relating to redemption at option of Holders, if any]
If less than all the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed, if the Securities are listed on a national
securities exchange, in accordance with the rules of such exchange, or if the
Securities are not so listed, on either a pro rata basis or by lot or by such
method as the Trustee shall deem fair and appropriate. The Trustee shall make
the selection from Securities outstanding and not previously called for
redemption. Securities in denominations of $1,000 may only be redeemed in whole.
The Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Securities that have denominations larger
than $1,000. Notice of redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each Holder whose Securities are to
-----------
(6) If applicable.
B-3
be redeemed at the registered address of such Holder. On and after the
redemption dates interest ceases to accrue on the Securities or portions thereof
called for redemption, provided that if the Issuer shall default in the payment
of such Securities at the redemption price together with accrued interest,
interest shall continue to accrue at the rate borne by the Securities.
6. Mandatory Redemption.(7)
The Issuer shall redeem __% of the aggregate principal amount of
Securities originally issued under the Indenture on each of _________ , which
redemptions are calculated to retire __% of the Securities originally issued
prior to maturity. Such redemptions shall be made at a redemption price equal to
100% of the principal amount thereof, together with accrued interest to the
redemption date. The Issuer may reduce the principal amount of Securities to be
redeemed pursuant to this Paragraph 6 by the principal amount of any Securities
previously redeemed, retired or acquired, otherwise than pursuant to this
Paragraph 6, that the Issuer has delivered to the Trustee for cancellation and
not previously credited to the Issuer's obligations under this Paragraph 6. Each
such Security shall be received and credited for such purpose by the Trustee at
the redemption price and the amount of such mandatory redemption payment shall
be reduced accordingly.
7. Denominations, Transfer, Exchange.
The Securities are in registered form only without coupons in
denominations of $1,000(8) and integral multiples of $1,000. A Holder may
transfer or exchange Securities by presentation of such Securities to the
Registrar or a co-Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Securities of other
denominations. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
transfer or exchange any Security selected for redemption, except the unredeemed
part thereof if the Security is redeemed in part, or transfer or exchange any
Securities for a period of 15 days before a selection of Securities to be
redeemed.
8. Persons Deemed Owners.
The registered Holder of this Security shall be treated as the owner of
it for all purposes.
----------
(7) If applicable.
(8) If applicable. Insert different or additional denominations and multiples.
B-4
9. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent will pay the money back to the Issuer at
its request. After that, Holders entitled to the money must look to the Issuer
for payment unless an abandoned property law designates another Person.
10. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture, the Guarantee or the
Securities may be amended or supplemented by the Issuer with the consent of the
Holders of at least a majority in principal amount of the outstanding Securities
and any past default or compliance with any provision relating to the Securities
may be waived in a particular instance with the consent of the Holders of a
majority in principal amount of the outstanding Securities. Without the consent
of any Holder, the Issuer may amend or supplement the Indenture, the Guarantee
or the Securities to cure any ambiguity, omission, defect or inconsistency,
(provided such action does not adversely affect the rights of the Holders), to
evidence the succession of another Person to the Issuer or any Guarantor, to add
covenants of the Issuer or of the Guarantors under Article Four of the Indenture
for the benefit of the Holders or to surrender rights or powers conferred upon
the Issuer or the Guarantors by the Indenture, to add Events of Default for the
benefit of the Holders, to change or eliminate any provisions of the Indenture,
(provided such change or elimination shall become effective only when none of
the Securities are outstanding), to add Guarantors, to provide for the
acceptance of appointment by a successor Trustee or facilitate the
administration of the trusts under the Indenture by more than one Trustee, to
close the Indenture as to authentication and delivery of additional Securities,
to supplement Indenture provisions to permit or facilitate defeasance and
discharge of the Securities, (provided such action does not adversely affect the
rights of the Holders), to provide that specific Indenture provisions shall not
apply to an unissued Series of Securities, to provide for uncertificated
Securities in addition to or in place of certificated Securities, to create a
Series and establish its terms, to remove a Guarantor, other than the Company,
which, in accordance with the terms of the Indenture, ceases to be liable in
respect of the Guarantee, or to make any other change, (provided such action
does not adversely affect the rights of any Holder).
11. Trustee Dealings With Company.
Bank One Trust Company, N.A., the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
B-5
12. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Issuer
shall not have any liability for any obligations of the Issuer under the
Securities or 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
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
13. Discharge of Indenture.
The Indenture contains certain provisions pertaining to defeasance,
which provisions shall for all purposes have the same effect as if set forth
herein.
14. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
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).
B-6
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below:
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address, and zip code)
and irrevocably appoint
agent to transfer this Security 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 other side of this Security)
SIGNATURE GUARANTEE
-------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
B-7
[FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE]
GUARANTEE
The Guarantors listed on Schedule I, attached hereto (the
"Guarantors"), have unconditionally guaranteed, jointly and severally (such
guarantee by each Guarantor being referred to herein as the "Guarantee") (i) the
due and punctual payment of the principal of and interest on the Securities,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on the overdue principal and interest, if any, on the Securities, to
the extent 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 set
forth in Article Nine of the Indenture and (ii) in case of any extension of time
of payment or renewal of any Securities or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
No past, present or future stockholder, partner, member, officer,
director, manager, general partner, employee or incorporator, as such, of any of
the Guarantors shall have any liability under the Guarantee by reason of such
Person's status as stockholder, partner, member, officer, director, manager,
general partner, employee or incorporator. Each holder of a Security by
accepting a Security waives and releases all such liability. This waiver and
release are part of the consideration for the issuance of the Guarantee.
Each holder of a Security by accepting a Security agrees that any
Guarantor other than Toll Brothers, Inc. (the "Company") the Company named below
shall have no further liability with respect to its Guarantee if such Guarantor
otherwise ceases to be liable in respect of its Guarantee in accordance with the
terms of the Indenture.
B-8
The Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Securities upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
TOLL BROTHERS, INC.
By:
-------------------------------
Title:
THE GUARANTORS LISTED ON
SCHEDULE I, ATTACHED HERETO
By:
-------------------------------
Title:
B-9
Exhibit C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
[Date]
Bank One Trust Company, N.A.
[Address]
Ladies and Gentlemen:
In connection with our proposed purchase of [Name of Security] (the
"Securities") of Toll Brothers Finance Corp., a Delaware corporation (the
"Issuer"), we confirm that:
1. We have received a copy of the Offering Memorandum (the
"Offering Memorandum"), dated [ _______________ ], relating to the
Securities and such other information as we deem necessary in order to
make our investment decision. We acknowledge that we have read and
agreed to the matters stated in the section entitled "Notice to
Investors" of such Offering Memorandum.
2. We understand that any subsequent transfer of the
Securities is subject to certain restrictions and conditions set forth
in the Indenture relating to the Securities (the "Indenture") as
described in the Offering Memorandum and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the
Securities except in compliance with, such restrictions and conditions
and the Securities Act of 1933, as amended (the "Securities Act"), and
all applicable state securities laws.
3. We understand that the offer and sale of the Securities
have not been registered under the Securities Act, and that the
Securities may not be offered or sold within the United States or to,
or for the account or benefit of, U.S. persons 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 any Securities, we will do so only (i) to the Issuer, the
Company or any subsidiary of the Company thereof, (ii) inside the
United States in accordance with Rule 144A under the Securities Act to
a "qualified institutional buyer" (as defined in Rule 144A promulgated
under the Securities Act), (iii) inside the United States 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 the Trustee (as defined in the Indenture) a signed
letter containing certain representations and agreements relating to
the restrictions on transfer of the Securities (the form of which
letter can be obtained from the Trustee), (iv) outside the United
States in accordance with Rule 904 of Regulation S promulgated under
C-1
the Securities Act to non-U.S. persons, (v) pursuant to the exemption
from registration provided by Rule 144 under the Securities Act (if
available), or (vi) pursuant to an effective registration statement
under the Securities Act, and we further agree to provide to any person
purchasing any of the Securities from us a notice advising such
purchaser that resales of the Securities are restricted as stated
herein.
4. We understand that, on any proposed resale of any
Securities, we will be required to furnish to the Trustee and the
Issuer such certification, legal opinions and other information as the
Trustee and the Issuer may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We further
understand that the Securities purchased by us will bear a legend to
the foregoing effect.
5. 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 Securities, and we and any accounts for which we are
acting are each able to bear the economic risk of our or their
investment, as applicable.
6. We are acquiring the Securities purchased by us for our
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, the Issuer, the Trustee and others 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 proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
-----------------------------
Name:
Title:
C-2
Exhibit D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
[Date]
Bank One Trust Company, N.A.
[Address]
Re: Toll Brothers Finance Corp. (the "Issuer")
[Name of Security] (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $[________] aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in
the United States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903 or Rule 904 of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Securities.
You, the Issuer and counsel for 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. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
-----------------------------------
Authorized Signature
D-2
