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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
--------------------
Date of Report (Date of Earliest Event Reported): JANUARY 31, 1996
U.S. HOME CORPORATION
(Exact Name of Registrant as Specified in Charter)
DELAWARE 1-5899 21-0718930
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
1800 WEST LOOP SOUTH
HOUSTON, TEXAS 77027
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code: (713) 877-2311
NOT APPLICABLE
(Former Name or Former Address, If Changed Since Last Report)
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ITEM 5. OTHER EVENTS.
(a) U.S. Home Corporation, a Delaware corporation (the "Company"),
intends to offer solely by means of a prospectus in an underwritten public
offering (the "Offering") $75,000,000 aggregate principal amount of unsecured
senior notes (the "Senior Notes") under the Company's effective Registration
Statement on Form S-3 (Registration No. 33-00583), as it may be amended or
supplemented, filed on January 31, 1996 with the Securities and Exchange
Commission. In connection with the Offering, the Company is filing the documents
attached as exhibits hereto.
(b) Paragraph (a)(1)(ii) of Item 17 of the Registration Statement is
amended and restated in its entirety, to read as follows:
"(ii) To reflect in the Prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement,
unless the information required to be included in such post-
effective amendment is contained in a periodic report filed
with or furnished to the Securities and Exchange Commission by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 and incorporated herein by
reference. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b)
(Section 230.424(b) of this chapter), if, in the aggregate, the
changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;"
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits
EXHIBIT
NO. DESCRIPTION OF DOCUMENT
- ------- -----------------------
1 Form of Underwriting Agreement by and between U.S. Home Corporation
and Dillon, Read & Co. Inc.
4.1 Form of Senior Indenture by and between U.S. Home Corporation and IBJ
Schroder Bank & Trust Company, as trustee.
4.2 Form of Officers' Certificate establishing the form and terms of the
Senior Notes.
10 Consent and First Amendment to Credit Agreement, dated as of February
9, 1996, among U.S. Home Corporation, certain lenders named therein
and The First National Bank of Chicago, as Agent.
12 Statements re: Computation of Ratio of Earnings to Fixed Charges.
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Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
U.S. HOME CORPORATION
Date: February 12, 1996 By: /s/ Chester P. Sadowski
-------------------------
Chester P. Sadowski
Vice President-Controller and Chief
Accounting Officer
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INDEX OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER NUMBERED PAGE
- ------- -------------
<S> <C> <C>
1 Form of Underwriting Agreement by and between U.S.
Home Corporation and Dillon, Read & Co. Inc.
4.1 Form of Senior Indenture by and between U.S. Home
Corporation and IBJ Schroder Bank & Trust Company,
as trustee.
4.2 Officers' Certificate establishing the form and
terms of the Senior Notes.
10 Consent and First Amendment to Credit Agreement,
dated as of February 9, 1996, among U.S. Home
Corporation, certain lenders named therein and The
First National Bank of Chicago, as Agent.
12 Statements re: Computation of Ratio of Earnings to
Fixed Charges.
</TABLE>
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EXHIBIT 1
U.S. HOME CORPORATION
_____% Senior Notes due 2001
UNDERWRITING AGREEMENT
Dated February __, 1996
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UNDERWRITING AGREEMENT
February __, 1996
DILLON, READ & CO. INC.
535 Madison Avenue
New York, New York 10022
Dear Sirs and Mesdames:
U.S. Home Corporation (hereinafter the "Company"), proposes to
sell to you $75,000,000 aggregate principal amount of its _____% Senior Notes
due 2001 (the "Notes") issued pursuant to an indenture (the "Indenture") dated
as of February __, 1996, between the Company and IBJ Schroder Bank & Trust
Company, as trustee (the "Trustee").
1. Representations and Warranties of the Company: The
Company represents and warrants to you that:
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (collectively, the "Act"), and has
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on such form, which has become effective, for
the registration under the Act of the Notes. Such registration
statement, as amended at the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1)(x) under the Act and complies
in all other material respects with said Rule. The Company proposes to
file with the Commission pursuant to Rule 424(b) under the Act a
supplement to the form of prospectus included in such registration
statement relating to the Notes and the plan of distribution thereof
and has previously advised you of all further information (financial
and other) with respect to the Company to be set forth therein. Such
registration statement, including the exhibits thereto, as amended at
the date of this Agreement, is hereinafter called the "Registration
Statement"; the prospectus dated February __, 1996 is hereinafter
called the "Basic Prospectus"; and the Prospectus Supplement to the
Basic Prospectus dated February __, 1996 in the form in which it shall
be filed by the Company with the Commission pursuant to Rule 424(b)
(including the Basic Prospectus as so supplemented) is hereinafter
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called the "Final Prospectus". Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424(b) is
hereinafter called the "Preliminary Final Prospectus". Any reference
herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
(the "Incorporated Documents") pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder (collectively, the
"Exchange Act") on or before the date of this Agreement, or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
date of this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is
first filed pursuant to Rule 424(b) under the Act, when, prior to the
time of purchase, any amendment to the Registration Statement becomes
effective (including the filing of any Incorporated Documents), when
any supplement to the Final Prospectus is filed with the Commission and
at the time of purchase, (i) the Registration Statement, as amended as
of any such time, and the Final Prospectus, as amended or supplemented
as of any such time, and the Indenture will comply in all material
respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
Exchange Act and the respective rules thereunder and (ii) neither the
Registration Statement, as amended as of any such time, nor the Final
Prospectus, as amended or supplemented as of any such time, will
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; provided, that the Company
makes no representations or warranties as to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility
and Qualification of the Trustee (Form T-1) under the Trust Indenture
Act or (ii) the information contained in or
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omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by you
specifically for use in connection with the preparation of the
Registration Statement or the Final Prospectus.
(c) all of the issued and outstanding shares of capital
stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable; the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with full corporate power and
authority to (i) own its properties and conduct its business as
described in the Final Prospectus, (ii) execute and deliver this
Agreement and the Indenture and (iii) issue, sell and deliver the Notes
as herein contemplated;
(d) each of the Company and its subsidiaries (the
"Subsidiaries") is duly qualified or licensed by and is in good
standing in, each jurisdiction in which it conducts its respective
businesses and in which the failure, individually or in the aggregate,
to be so licensed or qualified would have a material adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of the Company and its Subsidiaries taken as a
whole; each of the Company and its Subsidiaries is in compliance in all
respects with the laws, orders, rules, regulations and directives
issued or administered by each such jurisdiction, except to the extent
the failure to so comply would not have a material adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of the Company and its Subsidiaries taken as a
whole;
(e) neither the Company nor any Subsidiary is in breach
of, or in default under (nor has any event occurred which with notice,
lapse of time or both would constitute a breach of, or default under),
its respective charter, by-laws, partnership agreements, or other
organizational documents or in the performance or observance of any
obligation, agreement, covenant or condition contained in any license,
indenture, mortgage, deed of trust, bank loan or credit agreement or
other agreement or instrument to which the Company or any Subsidiary is
a party or by which any of them is bound, except to the extent such
breach or default would not have a material adverse effect on the
condition (financial or other), business, properties,
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net worth or results of operations of the Company and its Subsidiaries,
taken as a whole; and the execution, delivery and performance of this
Agreement and the Indenture, the issuance of the Notes and the
consummation of the transactions contemplated hereby and thereby will
not conflict with, or result in any breach of, or constitute a default
under (nor constitute an event which with notice, lapse of time or both
would constitute a breach of, or default under), any provisions of the
charter or by-laws of the Company or any of its Subsidiaries or under
any provision of any license, indenture, mortgage, deed of trust, bank
loan or credit agreement or other agreement or instrument to which the
Company or any Subsidiary is a party or by which any of them or their
respective properties may be bound or affected, or under any federal,
state, local or foreign law, regulation or rule or any decree, judgment
or order applicable to the Company or any Subsidiary;
(f) the Indenture has been duly authorized by the Company
and, when executed and delivered by the Company and the Trustee, will
be a legal, valid and binding agreement of the Company enforceable in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting creditors' rights generally and
general principles of equity;
(g) the Notes have been duly authorized by the Company
and, when executed and authenticated in accordance with the terms of
the Indenture and delivered to and paid for by you, will constitute
legal, valid and binding obligations of the Company, enforceable in
accordance with their terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting creditors' rights generally and
general principles of equity;
(h) this Agreement has been duly authorized, executed and
delivered by the Company;
(i) the Notes and the Indenture conform in all material
respects to the description thereof contained in the Final Prospectus;
(j) no approval, authorization, consent or order of or
filing with any federal, state, local or foreign governmental or
regulatory commission, board, body,
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authority or agency is required in connection with the issuance and
sale of the Notes other than approvals, authorizations, consents,
orders or filings which have already been obtained or made and
registration of the Notes under the Act, qualification of the Indenture
and the Trustee under the Trust Indenture Act, and any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Notes are being offered by you;
(k) Arthur Andersen LLP, whose report on the consolidated
financial information of the Company is included in the Registration
Statement and Final Prospectus, are independent public accountants with
respect to the Company, as required by the Act and the applicable
published rules and regulations thereunder;
(l) each of the Company and its Subsidiaries has all
necessary licenses, authorizations, consents and approvals and has made
all necessary filings required under any federal, state, local or
foreign law, regulation or rule, and has obtained all necessary
authorizations, consents and approvals from other persons, in order to
conduct its respective business except to the extent the absence
thereof would not have a material adverse effect on the condition
(financial or other), business, properties, prospects, net worth or
results of operations of the Company and its Subsidiaries taken as a
whole; neither the Company nor any Subsidiary is in violation of, or in
default under, any such license, authorization, consent or approval or
any federal, state, local or foreign law, regulation or rule or any
decree, order or judgment applicable to the Company or any of its
Subsidiaries, the result of which would have a material adverse effect
on the condition (financial or other), business, net worth or results
of operations of the Company and its Subsidiaries taken as a whole;
(m) all legal or governmental proceedings, contracts or
documents of a character required to be described in the Registration
Statement or the Final Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required;
(n) except as set forth in the Final Prospectus, there
are no actions, suits or proceedings pending or, to the knowledge of
the Company, threatened against the Company or any of its Subsidiaries
or any of their respective properties, at law or in equity, or before
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or by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency that could result in a
judgment, decree or order having a material adverse effect on the
condition (financial or other), business, properties, net worth or
results of operations of the Company and its Subsidiaries taken as a
whole;
(o) the audited financial statements included in the
Registration Statement and the Final Prospectus present fairly in all
material respects the consolidated financial position of the Company
and its Subsidiaries as of the dates indicated and the consolidated
results of operations and cash flows of the Company and its
Subsidiaries for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved;
(p) subsequent to the respective dates as of which
information is given in the Registration Statement and Final
Prospectus, and except as may be otherwise described or referred to in
the Registration Statement or Final Prospectus, there has not been (A)
any material and adverse change in the condition (financial or other),
business, properties, net worth or results of operations, regulatory
environment, present or prospective of the Company and its Subsidiaries
taken as a whole, (B) any transaction, which is material to the Company
and its Subsidiaries taken as a whole, contemplated or entered into by
the Company or any of its Subsidiaries except transactions entered into
in the ordinary course of business or (C) any obligation, contingent or
otherwise, directly or indirectly, incurred by the Company or any of
its Subsidiaries that is material to the Company and its Subsidiaries
taken as a whole;
(q) there is no claim pending or, to the knowledge of the
Company, threatened or contemplated under any Environmental Law (as
defined below) against the Company or any of its Subsidiaries which, if
adversely determined, would have a material adverse effect on the
condition (financial or other), business, properties, net worth or
results of operations of the Company and its Subsidiaries taken as a
whole; there are no past or present actions or conditions including,
without limitation, the release of any hazardous substance or waste
regulated under any Environmental Law that are likely to form the basis
of any such claim
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under existing law against the Company or any of its Subsidiaries
which, if adversely determined, would have a material adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of the Company and its Subsidiaries taken as a
whole. The term "Environmental Law" means any federal, state, local or
foreign law, rule or regulation now in effect governing pollution or
protection of the environment; and
(r) the Company and its Subsidiaries have good title to
all properties and assets owned or leased by them, in each case free
and clear of all liens, security interests, pledges, charges,
encumbrances, mortgages and defects (other than those set forth in the
Final Prospectus, including, without limitation, the financial
statements and the notes thereto or such as do not materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
Subsidiaries) except to the extent that would not have a material
adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and its
Subsidiaries taken as a whole.
2. Sale and Purchase: Upon the basis of the warranties
and representations and the other terms and conditions herein set forth, the
Company agrees to sell to you and you agree to purchase from the Company, the
aggregate principal amount of the Notes at a purchase price of _____% of the
principal amount thereof. You shall release the Notes for public sale promptly
after this Agreement becomes effective. You may from time to time increase or
decrease the public offering price after the initial public offering to such
extent as you may determine.
3. Payment and Delivery: Payment of the purchase price
for the Notes shall be made to the Company by certified or official bank check
in New York Clearing House Funds, at the office of Dillon, Read & Co. Inc., in
New York City (or such other place as may be agreed), against delivery of the
certificates for the Notes to you or for your account. Such payment and delivery
shall be made at 10:00 A.M., New York City time, on February __, 1996 (unless
another time shall be agreed to by you and the Company). The time at which such
payment and delivery are actually made is hereinafter sometimes called the "time
of purchase." The Notes shall be issued to you in book-entry form in such names
and in such denominations as you shall specify.
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4. Certain Covenants of the Company: The Company hereby
agrees:
(a) to furnish such information as may be required and
otherwise to qualify the Notes for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect as long as required for the
distribution of the Notes; provided that the Company shall not be
required to qualify as a foreign corporation or to consent to the
service of process under the laws of any such state (except service of
process with respect to the offering and sale of the Notes); to advise
you promptly of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to make every reasonable effort to obtain the
withdrawal of any order or suspension at the earliest practicable
moment;
(b) to furnish to you and your counsel, as many copies of
any Preliminary Final Prospectus and the Final Prospectus and any
amendments thereof and supplements thereto as you may reasonably
request;
(c) to advise you promptly within the time during which a
prospectus to the Notes is required to be delivered under the Act,
confirming such advice in writing, of any request by the Commission for
amendments or supplements to the Registration Statement or Final
Prospectus or for additional information with respect thereto, or of
notice of institution of proceedings for, or the entry of a stop order
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of
the Registration Statement, to make every reasonable effort to obtain
the lifting or removal of such order as soon as possible; and to advise
you promptly within the time during which a prospectus to the Notes is
required to be delivered under the Act of any proposal to amend or
supplement the Registration Statement or Basic Prospectus, including by
filing any Incorporated Documents, and to file no such amendment or
supplement to which you shall reasonably object in writing;
(d) to furnish to you for the period when the Notes are
outstanding (i) copies of any reports or other communications that the
Company shall send to its stockholders generally or holders of the
Notes or shall
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from time to time publish or publicly disseminate and (ii) copies of
all annual, quarterly and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such other similar form as may be
designated by the Commission;
(e) to advise you promptly of the happening of any event
known to the Company within the time during which a prospectus relating
to the Notes is required to be delivered under the Act which would, in
the reasonable judgment of the Company, require the making of any
change in the Final Prospectus, as then supplemented, then being used,
or in the information incorporated therein by reference, so that the
Final Prospectus would not include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading, and, during such time, to prepare and furnish, at the
Company's expense, to you promptly such amendments or supplements to
such Final Prospectus as may be necessary to reflect any such change
and to furnish to you a copy of such proposed amendment or supplement
before filing any such amendment or supplement with the Commission;
(f) to make generally available to its holders of Notes,
and to deliver to you, an earnings statement of the Company (which will
satisfy the provisions of Section 11(a) of the Act) covering a period
of twelve months beginning after the date of this Agreement as soon as
is reasonably practicable after the termination of such twelve-month
period but not later than 15 months thereafter;
(g) to furnish to each of you and your counsel signed
copies of the Registration Statement (in such quantities as you may
reasonably request), as initially filed with the Commission, all
amendments thereto (including the exhibits thereto) and all documents
incorporated by reference therein;
(h) to furnish to you as early as practicable prior to
the time of purchase, but no later than two business days prior
thereto, a copy of the latest available unaudited interim consolidated
financial statements, if any, of the Company and its Subsidiaries that
have been read by the Company's independent certified public
accountants, as stated in their letter to be furnished pursuant to
Section 6(c) of this Agreement;
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(i) to apply the net proceeds from the sale of the Notes
in the manner set forth under the caption "Use of Proceeds" in the
Final Prospectus;
(j) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement otherwise becomes effective
or is terminated, to pay all out-of-pocket expenses, fees and taxes
(other than (x) any transfer taxes and (y) fees and disbursements of
your counsel, except as set forth under Section 5 hereof and clauses
(iii) and (iv) below) in connection with (i) the preparation and filing
of the Registration Statement, each Preliminary Final Prospectus, the
Final Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to you (including
costs of mailing and shipment), (ii) the preparation, issuance,
execution, authentication and delivery of the Notes, (iii) the word
processing and/or printing of this Agreement, and the Indenture and the
reproduction and/or printing and furnishing of copies of each thereof
to you (including costs of mailing and shipment), (iv) the
qualification of the Notes for offering and sale under state laws and
the determination of their eligibility for investment under state law
as aforesaid (including, if any, the legal fees, filing fees and other
disbursements of your counsel) and the printing and furnishing of
copies of any blue sky surveys or legal investment surveys to you, (v)
any registration of the Notes under the Exchange Act, (vi) obtaining an
investment rating for the Notes (including fees payable to investment
rating agencies), (vii) any filing for review of the public offering of
the Notes by the NASD and (viii) the performance of the Company's other
obligations hereunder;
(k) to furnish to you, contemporaneously with any filing
with the Commission subsequent to the effective date of the
Registration Statement and during the period referred to in paragraph
(e) above, a copy of any document filed pursuant to Sections 13, 14 or
15(d) of the Exchange Act; and
(l) until the time of purchase, not to sell, contract to
sell, grant any option to sell or otherwise dispose of, directly or
indirectly, any debt securities of the Company which mature more than
one year following the time of purchase and which are substantially
similar to the Notes, without your prior written consent.
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5. Reimbursement of Underwriter's Expenses: If the Notes
are not delivered for any reason other than as a result of a default by you of
your obligations hereunder, the Company shall reimburse you for all of your
out-of- pocket expenses, including the reasonable fees and disbursements of your
counsel but without any further obligation on the part of the Company for loss
of profits or otherwise.
6. Conditions of Underwriter's Obligations: Your
obligations hereunder are subject to the accuracy of the representations and
warranties on the part of the Company on the date hereof and at the time of
purchase, unless previously waived, the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) The Company shall furnish to you at the time of
purchase an opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP,
counsel for the Company, addressed to you and dated as of the time of
purchase and in form reasonably satisfactory to your counsel, Davis
Polk & Wardwell, stating that:
(i) the Company has been duly incorporated and
is validly existing and in good standing under the laws of the
State of Delaware, with corporate power and authority to (A)
own its properties and conduct its business as described in
the Final Prospectus and (B) execute and deliver this
Agreement and the Indenture and to issue, sell and deliver the
Notes as herein contemplated;
(ii) U.S. Home Mortgage Corporation ("U.S. Home
Mortgage") has been duly incorporated and is validly existing
and in good standing under the laws of the State of Florida
with corporate power and authority to own its properties and
to conduct its business as described in the Final Prospectus;
(iii) the Company and U.S. Home Mortgage are duly
qualified as foreign corporations and are in good standing in
each jurisdiction set forth in Schedule A to such opinion;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
(v) the Indenture has been duly authorized by
the Company and, when executed and delivered by the Company,
and assuming the authorization,
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execution and delivery by the Trustee, will be a legal, valid
and binding agreement of the Company enforceable in accordance
with its terms, subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar
laws affecting the enforcement of creditors' rights in general
and to general principles of equity (regardless whether
considered in a proceeding at law or in equity);
(vi) the Notes have been duly authorized by the
Company and, when executed and authenticated in accordance
with the terms of the Indenture and delivered to and paid for
by you in accordance with the terms of this Agreement, will be
legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general and to general
principles of equity (regardless whether considered in a
proceeding at law or in equity);
(vii) the Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Final Prospectus (except that
in so opining such counsel need not express an opinion as to
any financial or statistical data included in the description
thereof);
(viii) the Registration Statement and the Final
Prospectus (except as to the financial statements and
schedules and other financial and statistical data contained
or incorporated by reference therein and the Trustee's
Statement of Eligibility on Form T-1, as to which such counsel
need not express an opinion) comply as to form in all material
respects with the requirements of the Act and the Trust
Indenture Act;
(ix) the Registration Statement has become
effective under the Act and, to the best of such counsel's
knowledge, no stop order proceedings with respect thereto are
pending or threatened by the Commission;
(x) no approval, authorization, consent or order
of or filing with any federal, state or local governmental or
regulatory commission,
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board, body, authority or agency is required for the valid
issue or sale of the Notes as contemplated hereby, except such
approvals, authorizations, consents and filings which have
been made and obtained, other than registration of the Notes
under the Act and qualification of the Trustee and the
Indenture under the Trust Indenture Act and those required
under state securities or "Blue Sky" laws in connection with
the purchase and distribution of the Notes by you;
(xi) the execution, delivery and performance of
this Agreement and the Indenture and the issuance of the Notes
and the consummation of the transactions contemplated hereby
and thereby do not and will not result in any breach of, or
constitute a default under (nor constitute any event which
with notice, lapse of time, or both would constitute a breach
of, or default under), any provisions of the charter or
by-laws of the Company or U.S. Home Mortgage or under any
provision of any license, indenture, mortgage, deed of trust,
bank loan or credit agreement or other agreement or instrument
to which the Company or U.S. Home Mortgage is a party or by
which any of them or their respective properties may be bound,
identified in a schedule to such opinion, or under any law,
regulation or rule of any governmental authority of the State
of New York or the federal government of the United States of
America or any decree, judgment or order applicable to the
Company or U.S. Home Mortgage identified in a schedule to
such opinion;
(xii) to the best of such counsel's knowledge,
there are no contracts, licenses, agreements, leases or
documents of a character which are required to be filed as
exhibits to the Registration Statement or to be summarized or
described in the Final Prospectus which have not been so
filed, summarized or described;
(xiii) to the best of such counsel's knowledge,
there are no actions, suits or proceedings pending or
threatened against the Company or any of its Subsidiaries or
any of their respective properties, at law or in equity or
before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency
which are required to be described in the Final Prospectus but
are not so described;
(xiv) the Indenture has been duly qualified under
the Trust Indenture Act; and
13
<PAGE> 15
(xv) the Incorporated Documents, when they were
filed (or, if an amendment with respect to any such document
was filed, when such amendment was filed), complied as to form
in all material respects with the Exchange Act (except as to
the financial statements and schedules and other financial and
statistical data contained or incorporated by reference
therein as to which such counsel need express no opinion).
In addition, such counsel shall state that such counsel have
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of the Company
and your representatives at which the contents of the Registration Statement and
Final Prospectus were discussed and, although such counsel is not passing upon
and does not assume responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or Final Prospectus, on
the basis of the foregoing, nothing has come to the attention of such counsel
that causes them to believe that the Registration Statement or any amendment
thereto at the time such Registration Statement or amendment became effective
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Final Prospectus or any supplement thereto at the
date of such Final Prospectus or such supplement, and at all times thereafter up
to and including the time of purchase, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (it being understood that such counsel need
express no belief with respect to the financial statements and schedules and
other financial and statistical data included in the Registration Statement or
Final Prospectus or with respect to the Trustee's Statement of Eligibility and
Qualification on Form T-1).
In rendering their opinion, such counsel may rely, as to
factual matters, on certificates of public officials and officers of the
Company; provided that copies of such certificates shall be forwarded to you and
provided further, that in the case of any such reliance (other than reliance on
the certificates of governmental authorities), such counsel shall state that it
believes the sources for such certificates are appropriate and that such counsel
has no actual knowledge that any factual matters set forth in any such
certificates are false.
14
<PAGE> 16
(b) The Company shall furnish to you at the time of
purchase an opinion of Steven Lane, Director - Legal of the Company, addressed
to you and dated as of the time of purchase, and in form reasonably satisfactory
to your counsel, Davis Polk & Wardwell, stating that:
(i) the Company and U.S. Home Mortgage are duly
qualified or licensed or in good standing, by or in each
jurisdiction in which they conduct their respective businesses
and in which the failure to be so licensed or qualified or in
good standing could have a material adverse effect on the
condition (financial or other), business, properties, net
worth, or results of operations of the Company and U.S. Home
Mortgage taken as a whole;
(ii) to the best of such counsel's knowledge,
neither the Company nor U.S. Home Mortgage is in breach of, or
in default under (nor has any event occurred which with
notice, lapse of time, or both would constitute a breach of,
or default under), any license, indenture, mortgage, deed of
trust, bank loan or credit agreement or any other agreement or
instrument to which the Company or U.S. Home Mortgage is a
party or by which either of them or their respective
properties may be bound or affected or under any law,
regulation or rule or any decree, judgment or order applicable
to the Company or any of its Subsidiaries except for such
matters as could not have a material adverse effect on the
condition (financial or other), business, properties, net
worth or results of operations of the Company and U.S. Home
Mortgage, individually or taken as a whole; and
(iii) the execution, delivery and performance of
this Agreement and the Indenture and the issuance of the Notes
and the consummation of the transactions contemplated hereby
and thereby do not and will not result in any breach of, or
constitute a default under any law, regulation or rule or any
decree, judgment or order applicable to the Company or U.S.
Home Mortgage.
(c) You shall have received from Arthur Andersen LLP, a
letter dated as of the date of this Agreement and addressed to you in the form
heretofore approved by you.
15
<PAGE> 17
(d) You shall have received at the time of purchase an
opinion from Davis Polk & Wardwell in form and substance reasonably satisfactory
to you.
(e) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act not later than 5:00 P.M., New
York City time, on the second full business day after the date of this
Agreement.
(f) Prior to the time of purchase, (i) no stop order with
respect to the effectiveness of the Registration Statement shall have been
issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the
Act, (ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) the Final
Prospectus and all amendments or supplements thereto, or modifications thereof,
if any, shall not contain any untrue statement of a material fact or omit to
state a material fact or necessary to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
(g) Between the time of execution of this Agreement and
the time of purchase, there has not been (i) any material and adverse change in
the condition (financial or other), business, properties, net worth or results
of operations, present or prospective, of the Company and its Subsidiaries taken
as a whole, other than as described or referred to in the Registration Statement
and the Final Prospectus, (ii) any transaction that is material to the Company
and its Subsidiaries, taken as a whole, contemplated or entered into by the
Company or any of its Subsidiaries, other than as described or referred to in
the Registration Statement and the Final Prospectus or (iii) any obligation,
contingent or otherwise, directly or indirectly incurred by the Company or any
of its Subsidiaries that is material to the Company and its Subsidiaries taken
as a whole, other than as described or referred to in the Registration Statement
and the Final Prospectus.
(h) The Company will, at the time of purchase, deliver to
you a certificate of two of its executive officers to the effect that the
representations and warranties of the Company set forth in this Agreement are,
in all material respects, true and correct as of such date and the conditions
set forth in paragraph (f) and paragraph (g) of this Section 6 have been met.
16
<PAGE> 18
(i) The Company shall have obtained all consents and
approvals necessary in connection with the Credit Agreement dated as of
September 29, 1995 among the Company, the Lenders listed on the signature pages
thereto and The First National Bank of Chicago, as Agent, for the issuance, sale
and delivery of the Notes and the consummation of the transactions contemplated
hereby, in form and substance reasonably satisfactory to you.
(j) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any statement
in the Registration Statement and the Final Prospectus as of the time of
purchase as you may reasonably request.
(k) The Company shall perform such of its obligations
under this Agreement as are to be performed by the terms hereof at or before the
time of purchase.
(l) Between the time of execution of this Agreement and
the time of purchase, there shall not have occurred any downgrading, nor shall
any notice have been given of (i) any intended or potential downgrading or (ii)
any review or possible change that does not indicate an improvement or
maintenance, in the rating, if any, accorded any securities of the Company by
any "nationally recognized statistical rating organization", as that term is
defined in Rule 436(g)(2) promulgated under the Act.
7. Effective Date of Agreement; Termination: This
Agreement shall become effective when the parties hereto have executed and
delivered this Agreement.
Your obligations hereunder shall be subject to termination in
your absolute discretion if, at any time prior to the time of purchase, trading
in securities on the New York Stock Exchange shall have been suspended or
minimum prices shall have been established on the New York Stock Exchange, or if
a banking moratorium shall have been declared either by the United States or New
York State authorities, or if the United States shall have declared war in
accordance with its constitutional processes or there shall have occurred any
material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States, as in your judgment, to make it
impracticable to market the Notes.
If you elect to terminate this Agreement as provided in this
Section 7, you will promptly notify the Company by letter or telegram.
17
<PAGE> 19
If the sale to you of the Notes, as contemplated by this
Agreement, is not carried out by you for any reason permitted under this
Agreement or if such sale is not carried out because the Company shall be unable
to comply with any of the terms of this Agreement, the Company shall not be
under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(j), 5 and 8 hereof), and you shall be under no obligation
or liability to the Company under this Agreement (except to the extent provided
in Section 8 hereof).
8. Indemnity by the Company and the Underwriter: (a) The
Company agrees to indemnify and hold harmless you, each person that controls you
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
your agents, employees, officers and directors and the agents, employees,
officers and directors of any such controlling person (collectively, the
"Dillon, Read indemnified parties") from and against any and all losses, claims,
damages, judgments, liabilities and expenses (including the reasonable fees and
expenses of counsel and other expenses in connection with investigating,
defending or settling any such action or claim) as they are incurred (and
regardless of whether the Dillon, Read indemnified party is a party to the
litigation, if any) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (as
amended) or the Final Prospectus (as amended or supplemented) or the Preliminary
Final Prospectus, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except (A) insofar as
such losses, claims, damages, judgments, liabilities or expenses arise out of,
or are based upon, any such untrue statement or omission or alleged untrue
statement or omission based upon and in conformity with information concerning
you and furnished in writing by you to the Company expressly for use therein or
(B) to the extent any such statement or omission in a Preliminary Final
Prospectus is corrected in the Final Prospectus.
(b) If any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be brought or
asserted against any Dillon, Read indemnified party, with respect to which
indemnity may be sought against the Company pursuant to this Section 8, such
Dillon, Read indemnified party shall promptly notify the Company in writing, and
the Company shall assume the defense thereof, including the employment of
counsel satisfactory to the Dillon, Read indemnified party and payment of all
fees and expenses. A Dillon, Read indemnified party shall have
18
<PAGE> 20
the right to employ separate counsel in any such action or proceeding and to
assume the defense thereof, but the fees and expenses of such counsel shall be
at the expense of such Dillon, Read indemnified party unless (i) the employment
of such counsel has been specifically authorized in writing by the Company, (ii)
the Company has failed promptly to assume the defense and employ counsel
satisfactory to the Dillon, Read indemnified party, or (iii) the named parties
to any such action or proceeding (including any impleaded parties) include both
a Dillon, Read indemnified party and a Company indemnified party and such
Dillon, Read indemnified party shall have reasonably concluded that there may be
one or more legal defenses available to it that are different from or additional
to those available to the Company (in which case the Company shall not have the
right to assume the defense of such action on behalf of such Dillon, Read
indemnified party), in any of which events, such fees and expenses shall be
borne by the Company and reimbursed as they are incurred. It is understood,
however, that the Company shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for all such Dillon, Read indemnified parties,
which firm shall be designated in writing by you, and that all such fees and
expenses shall be reimbursed as they are incurred. The Company shall not be
liable for any settlement of any such action effected without the written
consent of the Company (which consent shall not be unreasonably withheld or
delayed), but if settled with the written consent of the Company, or if there is
a final judgment with respect thereto, the Company agrees to indemnify and hold
harmless each Dillon, Read indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(c) You agree to indemnify and hold harmless the Company,
its directors, its officers, its agents, and any person that controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act (collectively, the "Company indemnified parties") to the same
extent as the foregoing indemnity from the Company to the Dillon, Read
indemnified parties, but only with respect to information concerning you and
furnished in writing by you to the Company expressly for use in the Registration
Statement, the Final Prospectus or the Preliminary Final Prospectus. In case any
action shall be brought against any Company indemnified party based on the
Registration Statement, the Final Prospectus or the Preliminary Final Prospectus
and in respect of which indemnity may be sought
19
<PAGE> 21
against you pursuant to this Section 8(c), you shall have the rights and duties
given to the Company by Section 8(b) hereof (except that if the Company shall
have assumed the defense thereof you shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof; provided
that the fees and expenses of such separate counsel shall be at your expense),
and the Company indemnified parties shall have the rights and duties given to
the Dillon, Read indemnified parties by Section 8(b) hereof.
(d) If the indemnification provided for in this Section 8
is unavailable to any Dillon, Read indemnified party or any Company indemnified
party otherwise entitled thereto under Section 8(a) or 8(c), as the case may be,
then the party required to indemnify such indemnified party under this Section 8
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, judgments, liabilities and expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and you on the other from the offering of the Notes, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and you on the other in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and you on the other shall be deemed to be in the
same proportions as the total net proceeds from the offering (net of
underwriting discounts and commissions, but before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by you, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and you on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by you, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, claims, damages,
judgments, liabilities and expenses referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
20
<PAGE> 22
connection with investigating or defending any claim or action.
The Company and you agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this subsection (d), no Dillon,
Read indemnified party shall be required to contribute any amount in excess of
the amount by which the total price at which the Notes underwritten by you and
distributed to the public were offered to the public exceeds the amount of any
damages which you have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person found
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not found
guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained
in this Section 8 and the covenants, warranties and representations of the
Company contained in this Agreement shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Dillon, Read
indemnified party or by or on behalf of any Company indemnified party, and shall
survive any termination of this Agreement or the issuance and delivery of the
Notes. Subject to paragraphs (b) and (c) of this Section 8, the Company and you
agree to promptly notify the other of the commencement of any litigation or
proceeding against it in connection with the issuance and sale of the Notes or
in connection with the Registration Statement or Final Prospectus.
9. Notices: Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by telegram
and, if to you, shall be sufficient in all respects if delivered or sent to
Dillon, Read & Co. Inc., 535 Madison Avenue, New York, New York 10022,
Attention: Syndicate Department and, if to the Company, shall be sufficient in
all respects if delivered to the Company at 1800 West Loop South, Houston, Texas
77252, Attention: President and Chief Operating Officer.
10. CONSTRUCTION: THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS AGREEMENT HAVE BEEN
21
<PAGE> 23
INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS
AGREEMENT.
11. Parties at Interest: The Agreement herein set forth
has been and is made solely for the benefit of you, the Company, and the other
Dillon, Read indemnified parties and Company indemnified parties, and their
respective successors, assigns, executors and administrators. No other person,
partnership, association or corporation (including a purchaser of the Notes, as
such purchaser) shall acquire or have any right under or by virtue of this
Agreement.
12. Counterparts: This Agreement may be signed by the
parties in counterparts, which together shall constitute one and the same
Agreement between the parties.
22
<PAGE> 24
If the foregoing correctly sets forth the understanding
between the Company and you, please so indicate in the space provided below for
the purpose, whereupon this Agreement and your acceptance shall constitute a
binding contract between the Company and you.
Very truly yours,
U.S. HOME CORPORATION
By:________________________
Name:
Title:
Agreed to and accepted as of
the date first above written:
DILLON, READ & CO. INC.
By:___________________________
Name:
Title:
23
<PAGE> 1
EXHIBIT 4.1
-------------------------
FORM OF
SENIOR INDENTURE,
DATED AS OF FEBRUARY __, 1996,
BETWEEN
U.S. HOME CORPORATION
AND
IBJ SCHRODER BANK & TRUST COMPANY
TRUSTEE
-------------------------
<PAGE> 2
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA
SECTION INDENTURE SECTION
- ------- -----------------
<S> <C>
310(a)(1)................................................... 9.10
(a)(2)................................................... 9.10
(a)(3)................................................... N.A.
(a)(4)................................................... N.A.
(b)...................................................... 9.08; 9.10
(c)...................................................... N.A.
311(a)...................................................... 9.11
(b)...................................................... 9.11
(c)...................................................... N.A.
312(a)...................................................... 10.01; 10.02
(b)...................................................... 10.02; 14.03
(c)...................................................... 10.02
313(a)...................................................... 9.06
(b)(1)................................................... 9.06
(b)(2)................................................... 9.06
(c)...................................................... 9.06
(d)...................................................... 9.06
314(a)...................................................... 6.03
(b)...................................................... N.A.
(c)(1)................................................... 14.04; 14.05
(c)(2)................................................... 14.04; 14.05
(c)(3)................................................... 14.05
(d)...................................................... N.A.
(e)...................................................... 14.05
(f)...................................................... N.A.
315(a)...................................................... 9.01
(b)...................................................... 9.05
(c)...................................................... 9.01
(d)...................................................... 9.01
(e)...................................................... 8.11
316(a)(last sentence)....................................... 8.05
(a)(1)(A)................................................ 8.05
(a)(1)(B)................................................ 8.04
(a)(2)................................................... Not applicable
(b)...................................................... 8.07
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
317(a)(1)................................................... 8.08
(a)(2)................................................... 8.09
(b)...................................................... 3.05
318(a)...................................................... 14.01
</TABLE>
N.A. means not applicable
NOTE: This cross-reference table will not, for any purpose, be deemed to be a
part of this Indenture.
2
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE.............................. 1
Section 1.01 Rules of Construction................................ 1
Section 1.02 Definitions.......................................... 2
Acquisition Debt..................................... 2
Affiliate............................................ 2
Affiliate Transaction................................ 2
Agent................................................ 2
Asset Sale........................................... 2
Asset Sale Offer Date................................ 3
Asset Sale Offer Price............................... 3
Bankruptcy Law....................................... 3
Board of Directors................................... 3
Board Resolution..................................... 3
Business Day......................................... 3
Capital Stock........................................ 3
Capitalized Lease Obligations........................ 3
Change of Control.................................... 3
Change of Control Offer.............................. 4
Change of Control Payment Date....................... 4
Change of Control Price.............................. 4
Common Equity........................................ 4
Company.............................................. 4
Company Request or Company Order..................... 4
Consolidated Cash Flow Available for Fixed Charges... 4
Consolidated Fixed Charge Coverage Ratio............. 5
Consolidated Income Tax Expense...................... 5
Consolidated Interest Expense........................ 5
Consolidated Interest Incurred....................... 5
Consolidated Net Income.............................. 5
Consolidated Tangible Net Assets..................... 6
Consolidated Tangible Net Worth...................... 6
Corporate Trust Office of the Trustee................ 6
Covenant Defeasance.................................. 6
Custodian............................................ 6
</TABLE>
i
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C>
Default.............................................. 6
Defaulted Interest................................... 6
Defeasance........................................... 6
Defeasible Series.................................... 7
Depository........................................... 7
Disqualified Stock................................... 7
Disqualified Stock Dividend.......................... 7
DTC.................................................. 7
Event of Default..................................... 7
Excess Proceeds...................................... 7
Excess Proceeds Offer................................ 7
Exchange Act......................................... 7
Existing Credit Facility............................. 7
Existing Indebtedness................................ 8
Fair Market Value.................................... 8
GAAP................................................. 8
Global Security...................................... 8
Hedging Obligations.................................. 8
Holder............................................... 8
Incur................................................ 8
Indebtedness......................................... 8
Indenture............................................ 9
Independent Financial Advisor........................ 9
Intangible Assets.................................... 9
Interest Expense..................................... 10
Interest Incurred.................................... 10
Interest Payment Date................................ 10
Investments.......................................... 11
Issue Date........................................... 11
Legal Holiday........................................ 11
Lien................................................. 11
Material Subsidiary.................................. 11
Maturity............................................. 11
Net Proceeds......................................... 11
Net Worth Amount..................................... 12
Net Worth Offer...................................... 12
Net Worth Offer Date................................. 12
Net Worth Offer Price................................ 12
Non-Recourse Indebtedness............................ 12
Officer.............................................. 12
Officers' Certificate................................ 12
</TABLE>
ii
<PAGE> 6
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Opinion of Counsel................................... 12
Outstanding.......................................... 12
Paying Agent......................................... 13
Permitted Investment................................. 13
Permitted Liens...................................... 14
Person............................................... 15
Place of Payment..................................... 15
Preferred Stock...................................... 15
Refinancing Indebtedness............................. 15
Registrar............................................ 16
Regular Record Date.................................. 16
Restricted Investment................................ 16
Restricted Payment................................... 16
Restricted Subsidiary................................ 17
SEC.................................................. 17
Securities........................................... 17
Security Register.................................... 17
Special Record Date.................................. 17
Stated Maturity...................................... 17
Subsidiary........................................... 17
Successor............................................ 18
TIA.................................................. 18
Trustee.............................................. 18
Trust Officer........................................ 18
U.S. Government Obligations.......................... 18
Unrestricted Subsidiary.............................. 18
Weighted Average Life to Maturity.................... 19
Wholly Owned Subsidiary.............................. 19
Section 1.03 Incorporation by Reference of TIA.................... 19
ARTICLE 2
SECURITY FORMS.......................................................... 20
Section 2.01 Forms Generally...................................... 20
Section 2.02 Form of Legend for Global Securities................. 20
Section 2.03 Form of Trustee's Certificate of Authentication...... 21
ARTICLE 3
THE SECURITIES.......................................................... 21
Section 3.01 Amount Unlimited; Issuable in Series................. 21
</TABLE>
iii
<PAGE> 7
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 3.02 Denominations......................................... 24
Section 3.03 Execution, Authentication, Delivery and Dating........ 24
Section 3.04 Temporary Securities.................................. 26
Section 3.05 Registration, Registration of Transfer and Exchange... 27
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities...... 30
Section 3.07 Payment of Interest; Interest Rights Preserved........ 31
Section 3.08 Persons Deemed Owners................................. 33
Section 3.09 Cancellation.......................................... 33
Section 3.10 Computation of Interest............................... 33
ARTICLE 4
REDEMPTION............................................................... 34
Section 4.01 Applicability of Article.............................. 34
Section 4.02 Election to Redeem; Notice to Trustee................. 34
Section 4.03 Selection of Securities to Be Redeemed................ 34
Section 4.04 Notices to Holders.................................... 34
Section 4.05 Effect of Notice of Redemption........................ 35
Section 4.06 Deposit of Redemption Price........................... 35
Section 4.07 Securities Redeemed in Part........................... 36
Section 4.08 Optional Redemption................................... 36
ARTICLE 5
SINKING FUNDS............................................................ 36
Section 5.01 Applicability of Article.............................. 36
Section 5.02 Satisfaction of Sinking Fund Payments with Securities 37
Section 5.03 Redemption of Securities for Sinking Fund............. 37
ARTICLE 6
COVENANTS................................................................ 38
Section 6.01 Payment of Securities................................. 38
Section 6.02 Maintenance of Office or Agency....................... 39
Section 6.03 SEC Reports; Financial Statements..................... 39
Section 6.04 Money for Security Payments to Be Held in Trust....... 40
Section 6.05 Compliance Certificate................................ 41
Section 6.06 Corporate Existence, etc.............................. 42
Section 6.07 Payment of Taxes and Other Claims..................... 42
Section 6.08 Insurance............................................. 42
</TABLE>
iv
<PAGE> 8
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 6.09 Stay, Extension and Usury Laws...................................... 43
Section 6.10 Maintenance of Properties........................................... 43
Section 6.11 Disposition of Proceeds of Asset Sales.............................. 43
Section 6.12 Limitations on Restricted Payments.................................. 47
Section 6.13 Limitations on Additional Indebtedness.............................. 48
Section 6.14 Restrictions on Restricted Subsidiary Indebtedness.................. 49
Section 6.15 Limitations and Restrictions on Capital Stock of Subsidiaries....... 49
Section 6.16 Change of Control................................................... 49
Section 6.17 Limitations on Transactions With Affiliates......................... 52
Section 6.18 Limitations on Liens................................................ 53
Section 6.19 Limitations on Restrictions on Distributions from Restricted
Subsidiaries........................................................ 53
Section 6.20 Maintenance of Consolidated Tangible Net Worth...................... 54
ARTICLE 7
SUCCESSORS............................................................................. 56
Section 7.01 Limitations on Mergers and Consolidations........................... 56
Section 7.02 Successor Corporation Substituted................................... 57
ARTICLE 8
DEFAULTS AND REMEDIES.................................................................. 58
Section 8.01 Events of Default................................................... 58
Section 8.02 Acceleration........................................................ 60
Section 8.03 Other Remedies...................................................... 60
Section 8.04 Waiver of Past Defaults and Compliance With Indenture Provisions
................................................................... 61
Section 8.05 Control by Majority................................................. 61
Section 8.06 Limitations on Suits................................................ 61
Section 8.07 Rights of Holders to Receive Payment................................ 62
Section 8.08 Collection Suit by Trustee.......................................... 62
Section 8.09 Trustee May File Proofs of Claim.................................... 62
Section 8.10 Priorities.......................................................... 63
Section 8.11 Undertaking for Costs............................................... 63
Section 8.12 Restoration of Rights and Remedies.................................. 64
ARTICLE 9
TRUSTEE................................................................................ 64
Section 9.01 Duties of Trustee................................................... 64
</TABLE>
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<TABLE>
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<S> <C> <C>
Section 9.02 Rights of Trustee............................................ 65
Section 9.03 Individual Rights of Trustee................................. 66
Section 9.04 Trustee's Disclaimer......................................... 66
Section 9.05 Notice of Defaults........................................... 67
Section 9.06 Reports by Trustee to Holders................................ 67
Section 9.07 Compensation and Indemnity................................... 67
Section 9.08 Replacement of Trustee....................................... 68
Section 9.09 Successor Trustee by Merger, etc............................. 69
Section 9.10 Eligibility; Disqualification................................ 69
Section 9.11 Preferential Collection of Claims Against Company............ 70
ARTICLE 10
HOLDERS' LISTS.................................................................. 70
Section 10.01 Company to Furnish Trustee Names and Addresses of Holders.... 70
Section 10.02 Preservation of Information.................................. 70
ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE.............................................. 71
Section 11.01 Company's Option to Effect Defeasance or Covenant Defeasance. 71
Section 11.02 Defeasance and Discharge..................................... 71
Section 11.03 Covenant Defeasance.......................................... 72
Section 11.04 Conditions to Defeasance or Covenant Defeasance.............. 72
Section 11.05 Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions............ 74
Section 11.06 Reinstatement................................................ 75
ARTICLE 12
SATISFACTION AND DISCHARGE...................................................... 75
Section 12.01 Satisfaction and Discharge of Indenture...................... 75
Section 12.02 Application of Trust Money................................... 76
ARTICLE 13
SUPPLEMENTAL INDENTURES......................................................... 77
Section 13.01 Supplemental Indentures Without Consent of Holders........... 77
Section 13.02 Supplemental Indentures With Consent of Holders.............. 78
Section 13.03 Compliance With TIA.......................................... 80
Section 13.04 Revocation and Effect of Consents............................ 80
</TABLE>
vi
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<TABLE>
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Section 13.05 Notation on or Exchange of Securities........................ 81
Section 13.06 Trustee to Sign Amendments, etc.............................. 81
ARTICLE 14
MISCELLANEOUS................................................................... 81
Section 14.01 TIA Controls................................................. 81
Section 14.02 Notices...................................................... 81
Section 14.03 Communication by Holders With Other Holders.................. 83
Section 14.04 Action by Securityholders.................................... 83
Section 14.05 Proof of Execution of Instruments and Holding of Securities.. 84
Section 14.06 Obligation to Disclose Beneficial Ownership of Securities.... 84
Section 14.07 Certificate and Opinion as to Conditions Precedent........... 84
Section 14.08 Statements Required in Certificate or Opinion................ 85
Section 14.09 Rules by Trustee and Agents.................................. 86
Section 14.10 No Recourse Against Others................................... 86
Section 14.11 Governing Law................................................ 86
Section 14.12 No Adverse Interpretation of Other Agreements................ 86
Section 14.13 Successors................................................... 86
Section 14.14 Severability................................................. 87
Section 14.15 Counterpart Originals........................................ 87
Section 14.16 Trustee as Paying Agent and Registrar........................ 87
Section 14.17 Table of Contents, Headings, etc............................. 87
Section 14.18 Benefits of Indenture........................................ 87
Section 14.19 Acceptance of Trust.......................................... 87
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES............................................... 88
Section 15.01 Purposes of Meetings......................................... 88
Section 15.02 Call of Meetings by Trustee.................................. 88
Section 15.03 Call of Meetings by Company or Securityholders............... 88
Section 15.04 Person Entitled to Vote at Meeting........................... 89
Section 15.05 Regulations for Meeting...................................... 89
</TABLE>
vii
<PAGE> 11
INDENTURE, dated as of February __, 1996, between U.S. Home
Corporation, a Delaware corporation, and IBJ Schroder Bank & Trust Company, a
banking organization organized under the laws of New York, as trustee.
RECITALS OF THE COMPANY
A. The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities") to be
issued in one or more series as provided herein.
B. All things necessary have been done to make the Securities,
when executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company and to make this
Indenture a valid agreement of the Company.
NOW, THEREFORE, in consideration of the above premises and the
acquisition of the Securities by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 RULES OF CONSTRUCTION
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(c) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision hereof;
(d) "or" is not exclusive; and
(e) provisions apply to successive events and transactions.
<PAGE> 12
SECTION 1.02 DEFINITIONS
Capitalized terms used herein will have the following respective
meanings when used herein:
"Acquisition Debt" means Indebtedness of any Person existing at
the time such Person became a Subsidiary of the Company (or such Person is
merged into the Company or one of the Company's Subsidiaries) or assumed in
connection with the acquisition of assets from any such Person (other than
assets acquired in the ordinary course of business of the Company and its
Subsidiaries), including, without limitation, Indebtedness Incurred in
connection with, or in contemplation of, such Person becoming a Subsidiary of
the Company (but excluding Indebtedness of such Person which is extinguished,
retired or repaid in connection with such Person becoming a Subsidiary of the
Company).
"Affiliate" of any Person means any Person directly or indirectly
controlling or controlled by, or under direct or indirect common control with,
such Person. For purposes of this Indenture, each executive officer and director
of the Company and each Restricted Subsidiary will be an Affiliate of the
Company. In addition, for purposes of this Indenture, control of a Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise. Notwithstanding the foregoing, the term "Affiliate" will not include,
with respect to the Company or any Restricted Subsidiary which is a Wholly Owned
Subsidiary of the Company, any Restricted Subsidiary which is a Wholly Owned
Subsidiary of the Company.
"Affiliate Transaction" has the meaning set forth in Section
6.17(a) hereof.
"Agent" means any Registrar or Paying Agent.
"Asset Sale" for any Person means the sale, lease, conveyance or
other disposition (including, without limitation, by merger, consolidation or
sale and leaseback transaction, and whether by operation of law or otherwise) of
any of that Person's assets (including, without limitation, the sale or other
disposition of Capital Stock of any Subsidiary of such Person, whether by such
Person or such Subsidiary), whether owned on the Issue Date of Securities of any
series or subsequently acquired in one transaction or a series of related
transactions, in which such Person and/or its Subsidiaries receive cash and/or
other consideration (including, without limitation, the unconditional assumption
of Indebtedness of such Person and/or its Subsidiaries) having an aggregate Fair
Market Value of $5,000,000 or more as to such transaction or series of related
transactions; provided, however, (i) sales of homes and sales of mortgages on
homes in the ordinary course of business consistent with past practices will not
constitute Asset Sales, (ii) sales, leases, conveyances or other dispositions,
including, without limitation, exchanges or swaps, of real estate or other
assets in the ordinary course of business consistent with past practices will
not constitute Asset Sales, (iii) sales, leases, sale-leasebacks or other
dispositions
2
<PAGE> 13
of amenities and other improvements at the Company's or its Subsidiaries'
communities in the ordinary course of business consistent with past practices
will not constitute Asset Sales, and (iv) transactions between the Company and
any of its Restricted Subsidiaries which are Wholly Owned Subsidiaries, or among
such Restricted Subsidiaries which are Wholly Owned Subsidiaries of the Company
will not constitute Asset Sales.
"Asset Sale Offer Date" has the meaning set forth in Section
6.11(c) hereof.
"Asset Sale Offer Price" has the meaning set forth in Section
6.11(c) hereof.
"Bankruptcy Law" means title 11 of the United States Code, as
amended, or any similar federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of a Person or
any authorized committee of the board of directors of such Person.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" of any Person means any and all shares, rights to
purchase, warrants or options (whether or not currently exercisable),
participations, or other equivalents of or interests in (however designated) the
equity (which includes, but is not limited to, common stock, preferred stock and
partnership and joint venture interests) of such Person (excluding any debt
securities that are convertible into, or exchangeable for, such equity).
"Capitalized Lease Obligations" of any Person means any obligation
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 obligation will be the capitalized amount thereof determined in
accordance with GAAP.
"Change of Control" means any of the following: (i) the sale,
lease, conveyance or other disposition of all or substantially all of the
Company's assets as an entirety or substantially as an entirety to any Person or
group of Persons (within the meaning of Section 13(d)(3) of the Exchange Act)
in one or a series of transactions; provided that a transaction where the
holders of all classes of Common Equity of the Company immediately prior to such
transaction own, directly or indirectly, 50 percent or more of the aggregate
voting power of all classes of Common Equity of such Person or group immediately
after such transaction will not be a Change of Control, (ii) the acquisition by
the Company and/or any of its Subsidiaries of 50 percent or more of the
aggregate voting power of all classes of Common Equity of the Company
3
<PAGE> 14
in one transaction or a series of related transactions, (iii) the liquidation or
dissolution of the Company; provided that a liquidation or dissolution of the
Company which is part of a transaction or series of related transactions that
does not constitute a Change of Control under the "provided" clause of clause
(i) above will not constitute a Change of Control under this clause (iii) or
(iv) any transaction or a series of related transactions (as a result of a
tender offer, merger, consolidation or otherwise) that results in, or that is in
connection with, (a) any Person, including, a "group" (within the meaning of
Section 13(d)(3) of the Exchange Act) acquiring beneficial ownership (as
determined in accordance with Rule 13d-3 under the Exchange Act), directly or
indirectly, of 50 percent or more of the aggregate voting power of all classes
of Common Equity of the Company or of any Person that possesses beneficial
ownership (as determined in accordance with Rule 13d-3 under the Exchange Act),
directly or indirectly, of 50 percent or more of the aggregate voting power of
all classes of Common Equity of the Company or (b) less than 50 percent
(measured by the aggregate voting power of all classes) of the Common Equity of
the Company being registered under Section 12(b) or 12(g) of the Exchange Act.
"Change of Control Offer" has the meaning set forth in Section
6.16(a) hereof.
"Change of Control Payment Date" has the meaning set forth in
Section 6.16(a) hereof.
"Change of Control Price" has the meaning set forth in Section
6.16(a) hereof.
"Common Equity" of any Person means all Capital Stock of such
Person that is generally entitled (i) to vote in the election of directors of
such Person, or (ii) if such Person is not a corporation, to vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"Company" means U.S. Home Corporation, a Delaware corporation, and
any successor thereof.
"Company Request or Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President, its Senior Vice President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Cash Flow Available for Fixed Charges" of the
Company means, for any period, the sum of the amounts for such period of (i)
Consolidated Net Income, plus (ii) Consolidated Income Tax Expense (other than
income tax expense (either positive or negative) attributable to extraordinary
and nonrecurring gains or losses on Asset Sales), plus (iii) Consolidated
Interest Expense, plus (iv) all depreciation, and without duplication,
amortization (including, without limitation, previously capitalized interest
amortized to cost of
4
<PAGE> 15
sales), plus (v) all other noncash items reducing Consolidated Net Income for
such period, minus (vi) all other noncash items increasing Consolidated Net
Income during such period; all as determined on a consolidated basis for the
Company and its Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" of the Company means,
with respect to any determination date, the ratio of (i) Consolidated Cash Flow
Available for Fixed Charges of the Company for the prior four full fiscal
quarters for which financial results have been reported immediately preceding
the determination date, to (ii) the aggregate Consolidated Interest Incurred of
the Company for the prior four fiscal quarters for which financial results have
been reported immediately preceding the determination date.
"Consolidated Income Tax Expense" of the Company for any period
means the income tax expense of the Company and its Restricted Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" of the Company for any period
means the Interest Expense of the Company and its Restricted Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Incurred" of the Company for any period
means the Interest Incurred of the Company and its Restricted Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" of the Company for any period means the
aggregate net income (or loss) of the Company and its Restricted Subsidiaries
for such period, determined on a consolidated basis in accordance with GAAP;
provided that there will be excluded from such net income (to the extent
otherwise included therein), without duplication: (i) the net income (or loss)
of any Person (other than a Restricted Subsidiary) in which any Person
(including, without limitation, an Unrestricted Subsidiary) other than the
Company has an ownership interest, except to the extent that any such income has
actually been received by the Company or any Restricted Subsidiary in the form
of dividends or similar distributions during such period, (ii) except to the
extent includible in the Consolidated Net Income pursuant to the foregoing
clause (i), the net income (or loss) of any Person that accrued prior to the
date that (a) such Person becomes a Restricted Subsidiary or is merged into or
consolidated with the Company or any of its Restricted Subsidiaries or (b) the
assets of such Person are acquired by the Company or any of its Restricted
Subsidiaries, (iii) the net income of any Restricted Subsidiary to the extent
that (but only so long as) the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of that income is not permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary during such period, (iv) in the case of a successor to the
Company by consolidation, merger or transfer of its assets, any
5
<PAGE> 16
earnings of the successor prior to such merger, consolidation or transfer of
assets and (v) the gains (but not losses) resulting from (a) the acquisition of
securities issued by the Company or extinguishment of Indebtedness of the
Company, (b) Asset Sales and (c) other extraordinary items. Notwithstanding the
foregoing, in calculating Consolidated Net Income, the Company will be entitled
to take into consideration the tax benefits associated with any extraordinary
loss, but only to the extent such tax benefits are recognized by the Company.
Consolidated Net Income will exclude any noncash losses, whether or not
extraordinary, incurred in connection with the issuance of Capital Stock (other
than Disqualified Stock) in exchange for Indebtedness of the Company or its
Wholly Owned Subsidiaries which are Restricted Subsidiaries.
"Consolidated Tangible Net Assets" of the Company as of any date
means the total amount of assets of the Company and its Restricted Subsidiaries
(less applicable reserves) on a consolidated basis at the end of the fiscal
quarter immediately preceding such date, as determined in accordance with GAAP,
less: (i) Intangible Assets and (ii) appropriate adjustments on account of
minority interests of other Persons holding equity investments in Restricted
Subsidiaries, in the case of each of clauses (i) and (ii) above as reflected on
the consolidated balance sheet of the Company and its Restricted Subsidiaries as
of the end of the fiscal quarter immediately preceding such date.
"Consolidated Tangible Net Worth" of the Company as of any date
means the stockholders' equity (including any Preferred Stock that is classified
as equity under GAAP, other than Disqualified Stock) of the Company and its
Restricted Subsidiaries on a consolidated basis at the end of the fiscal quarter
immediately preceding such date, as determined in accordance with GAAP, less the
amount of Intangible Assets reflected on the consolidated balance sheet of the
Company and its Restricted Subsidiaries as of the end of the fiscal quarter
immediately preceding such date.
"Corporate Trust Office of the Trustee" will be at the address of
the Trustee specified in Section 14.02 hereof or such other address as the
Trustee may give notice to the Company.
"Covenant Defeasance" has the meaning set forth in Section 11.03
hereof.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"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.
"Defaulted Interest" has the meaning set forth in Section 3.07
hereof.
"Defeasance" has the meaning set forth in Section 11.02 hereof.
6
<PAGE> 17
"Defeasible Series" has the meaning set forth in Section 11.01
hereof.
"Depository" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depository for such Securities as contemplated by Section 3.01.
"Disqualified Stock" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
final Maturity date of the Securities of any series; provided that any Capital
Stock which would not constitute Disqualified Stock but for provisions thereof
giving holders thereof the right to require the Company to repurchase or redeem
such Capital Stock upon the occurrence of a change of control occurring prior to
the final Maturity of the Securities will not constitute Disqualified Stock if
the change of control provisions applicable to such Capital Stock are no more
favorable to the holders of such Capital Stock than the provisions contained in
Section 6.16 hereof and such Capital Stock specifically provides that the
Company will not repurchase or redeem (or be required to repurchase or redeem)
any such Capital Stock pursuant to such provisions prior to the Company's
repurchase of Securities pursuant to Section 6.16 hereof.
"Disqualified Stock Dividend" of any Person means, for any
dividend payable with regard to Disqualified Stock issued by such Person, the
amount of such dividend multiplied by a fraction, the numerator of which is one
and the denominator of which is one minus the maximum statutory combined
federal, state and local income tax rate (expressed as a decimal number between
1 and 0) then applicable to such Person.
"DTC" has the meaning set forth in Section 2.02 hereof.
"Event of Default" has the meaning set forth in Section 8.01(a)
hereof.
"Excess Proceeds" has the meaning set forth in Section 6.11(a)
hereof.
"Excess Proceeds Offer" has the meaning set forth in Section
6.11(c) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Credit Facility" means the Credit Agreement, dated as of
September 29, 1995, between the Company and the lenders named therein and The
First National Bank of Chicago, as Agent (together with the documents related
thereto (including, without limitation, any guaranty agreements)), as such
Facility may be amended, restated, supplemented or
7
<PAGE> 18
otherwise modified from time to time, and includes any facility extending the
maturity of, increasing the total commitment of, or restructuring (including,
without limitation, the inclusion of additional borrowers thereunder that are
Subsidiaries of the Company and whose obligations thereunder are guaranteed by
the Company) all or any portion of, the Indebtedness under such Facility or any
successor or replacement facilities and includes any facility with one or more
agents or lenders refinancing or replacing all or any portion of the
Indebtedness under such Facility or any successor facilities.
"Existing Indebtedness" means all of the Indebtedness of the
Company and its Subsidiaries that is outstanding on the Issue Date of Securities
of any series.
"Fair Market Value" with respect to any asset or property means
the sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
"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 on the Issue Date
of the Securities of any series.
"Global Security" means a Security that evidences all or part of
the Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depository for such Securities or a nominee
thereof.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any interest rate swap agreement, foreign currency exchange
agreement, interest rate collar agreement, option or futures contract or other
similar agreement or arrangement relating to interest rates or foreign exchange
rates.
"Holder" means a Person in whose name a Security is registered.
"Incur" means to, directly or indirectly, create, incur, assume,
guaranty, extend the maturity of, or otherwise become liable with respect to any
Indebtedness.
"Indebtedness" of any Person at any date means, without
duplication, (i) all indebtedness of such Person for borrowed money (whether or
not the recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof), (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations of
such Person in respect of letters of credit or other similar instruments (or
reimbursement obligations with respect thereto), other than standby letters of
credit issued for the benefit of, or
8
<PAGE> 19
surety and performance bonds issued by, such Person in the ordinary course of
business, (iv) all obligations of such Person with respect to Hedging
Obligations (other than those that fix or cap the interest rate on variable rate
indebtedness otherwise permitted by this Indenture or that fix the exchange rate
in connection with indebtedness denominated in a foreign currency and otherwise
permitted by this Indenture and other than the purchase of mortgage commitments
in the ordinary course of business), (v) all obligations of such Person to pay
the deferred and unpaid purchase price of property or services, including,
without limitation, all conditional sale obligations of such Person and all
obligations under any title retention agreement (except trade payables and
accrued expenses incurred in the ordinary course of business), (vi) all
Capitalized Lease Obligations of such Person, (vii) all indebtedness of others
secured by a Lien on any asset of such Person, whether or not such indebtedness
is assumed by such Person, (viii) all indebtedness of others guaranteed by, or
otherwise the liability of, such Person to the extent of such guaranty or
liability, and (ix) all Disqualified Stock issued by such Person (the amount of
indebtedness represented by any Disqualified Stock will equal the greater of the
voluntary or involuntary liquidation preference plus accrued and unpaid
dividends). The amount of indebtedness of any Person at any date will be (a) the
outstanding balance at such date of all unconditional obligations as described
above, (b) the maximum liability of such Person for any contingent obligations
under clause (v) above and (c) in the case of clause (vii) (if the indebtedness
referred to therein is not assumed by such Person), the lesser of the (A) Fair
Market Value of all assets subject to a Lien securing the indebtedness of others
on the date that the Lien attaches and (B) amount of the indebtedness secured.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the TIA that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 3.01 hereof upon receipt by the Trustee
of an Opinion of Counsel in accordance with Section 3.03 hereof.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
reasonable judgment of the Company's Board of Directors, (i) qualified to
perform the task for which it has been engaged, and (ii) disinterested and
independent with respect to the Company, all of its Subsidiaries, and each
Affiliate of the Company and/or its Subsidiaries that is involved in the
Affiliate Transaction with respect to which such firm has been engaged.
"Intangible Assets" of the Company means all unamortized debt
discount and expense, unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade
9
<PAGE> 20
names, copyrights, write-ups of assets over their carrying value at the end of
the last fiscal quarter ended prior to the Issue Date of the Securities of any
series or the date of acquisition, if acquired subsequent thereto, and all other
items which would be treated as intangibles on the consolidated balance sheet of
the Company and its Restricted Subsidiaries prepared in accordance with GAAP.
"Interest Expense" of any Person for any period means, without
duplication, the aggregate amount of (i) interest which, in conformity with
GAAP, would be set opposite the caption "interest expense" or any like caption
on an income statement for such Person (including, without limitation, imputed
interest included on Capitalized Lease Obligations, all commissions, discounts
and other fees and charges owed with respect to letters of credit securing
financial obligations and bankers' acceptance financing, the net costs
associated with Hedging Obligations, amortization of other financing fees and
expenses, the interest portion of any deferred payment obligation, amortization
of discount or premium, if any, and all other noncash interest expense other
than interest and other charges amortized to cost of sales) and includes, with
respect to the Company and its Restricted Subsidiaries, without duplication
(including duplication of the foregoing items), all interest included as a
component of cost of sales for such period, and (ii) the amount of Disqualified
Stock Dividends recognized by the Company on any Disqualified Stock whether or
not paid during such period.
"Interest Incurred" of any Person for any period means, without
duplication, the aggregate amount of (i) interest which, in conformity with
GAAP, would be set opposite the caption "interest expense" or any like caption
on an income statement for such Person (including, without limitation, imputed
interest included on Capitalized Lease Obligations, all commissions, discounts
and other fees and charges owed with respect to letters of credit securing
financial obligations and bankers' acceptance financing, the net costs
associated with Hedging Obligations, amortization of other financing fees and
expenses, the interest portion of any deferred payment obligation, amortization
of discount or premium, if any, and all other noncash interest expense other
than interest and other charges amortized to cost of sales) and includes, with
respect to the Company and its Restricted Subsidiaries, without duplication
(including duplication of the foregoing items), all capitalized interest for
such period, all interest attributable to discontinued operations for such
period to the extent not set forth on the income statement under the caption
"interest expense" or any like caption, and all interest actually paid by the
Company or a Restricted Subsidiary under any guaranty of Indebtedness
(including, without limitation, a guaranty of principal, interest or any
combination thereof) of any other Person during such period and (ii) the amount
of Disqualified Stock Dividends recognized by the Company on any Disqualified
Stock whether or not declared during such period.
"Interest Payment Date", when used with respect to a Security of
any series, means the Stated Maturity of an installment of interest on such
Security.
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<PAGE> 21
"Investments" of any Person means (i) all investments by such
Person in any other Person in the form of loans, advances or capital
contributions, (ii) all guaranties of Indebtedness or other obligations of any
other Person by such Person, (iii) all purchases (or other acquisitions for
consideration) by such Person of Indebtedness, Capital Stock or other securities
of any other Person and (iv) all other items that would be classified as
investments (including, without limitation, purchases of assets outside the
ordinary course of business) on a balance sheet of such Person determined in
accordance with GAAP.
"Issue Date" means the date of original issuance of the Securities
of each series established pursuant to Section 3.01 hereof.
"Legal Holiday" means Saturday, Sunday or a day on which banking
institutions in New York, New York or at a Place of Payment are authorized or
obligated by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a Place of Payment, payment shall 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.
"Lien" means with respect to any asset, any mortgage, lien,
pledge, charge, security interest or other similar encumbrance of any kind upon
or in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law (including, without limitation, any conditional
sale or other title retention agreement, and any lease in the nature thereof,
any option or other agreement to sell, and any filing of, or agreement to give,
any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction).
"Material Subsidiary" means any Subsidiary of the Company which
accounted for three percent or more of the Consolidated Tangible Net Assets or
Consolidated Cash Flow Available for Fixed Charges of the Company on a
consolidated basis for the fiscal year ending immediately prior to any Default
or Event of Default.
"Maturity", when used with respect to a Security of any series,
means the date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Net Proceeds" means cash (in U.S. dollars or freely convertible
into U.S. dollars) received by the Company or any Restricted Subsidiary from an
Asset Sale net of (i) (a) all brokerage commissions, investment banking fees and
all other fees and expenses (including, without limitation, fees and expenses of
counsel and investment bankers) related to such Asset Sale, (b) provisions for
all income and other taxes measured by or resulting from such Asset Sale, (c)
payments made to retire Indebtedness where payment of such Indebtedness is
required in connection with such Asset Sale, (d) amounts required to be paid to
any Person (other than the
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<PAGE> 22
Company or a Restricted Subsidiary) owning a beneficial interest in the assets
subject to the Asset Sale and (e) appropriate amounts to be provided by the
Company or any Restricted Subsidiary thereof, as the case may be, as a reserve,
in accordance with GAAP, against any liabilities associated with such Asset Sale
and retained by the Company or any Restricted Subsidiary thereof, as the case
may be, after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as reflected in an Officers' Certificate delivered to the
Trustee, and (ii) all noncash consideration received by the Company or any of
its Restricted Subsidiaries from such Asset Sale upon the liquidation or
conversion of such consideration into cash, without duplication, net of all
items enumerated in subclauses (a) through (e) of clause (i) hereof.
"Net Worth Amount" has the meaning set forth in Section 6.20(a)
hereof.
"Net Worth Offer" has the meaning set forth in Section 6.20(a)
hereof.
"Net Worth Offer Date" has the meaning set forth in Section
6.20(a) hereof.
"Net Worth Offer Price" has the meaning set forth in Section
6.20(a) hereof.
"Non-Recourse Indebtedness" with respect to any Person means
Indebtedness of such Person for which (i) the sole legal recourse for collection
of principal and interest on such Indebtedness is against the specific property
identified in the instruments evidencing or securing such Indebtedness and such
property was acquired with the proceeds of such Indebtedness or such
Indebtedness was Incurred within 90 days after the acquisition of such property
and (ii) no other assets of such Person may be realized upon in collection of
principal or interest on such Indebtedness.
"Officer" means the Chairman of the Board, the President, the
Senior Vice President, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary, any Assistant Secretary or any Vice President of a Person.
"Officers' Certificate" means a certificate signed by two
Officers, one of whom must be the Person's Chief Executive Officer (or Co-Chief
Executive Officer), Chief Operating Officer, Chief Financial Officer or Chief
Accounting Officer.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
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<PAGE> 23
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) Securities as to which the Defeasance has been effected
pursuant to Section 11.02 hereof; and
(iv) Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities has been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of a Security denominated in one or more foreign currencies or currency
units shall be the U.S. dollar equivalent, determined in the manner provided as
contemplated by Section 3.01 hereof on the Issue Date of such Security, of the
principal amount of such Security, and (b) Securities owned by the Company or
any other obligor of the Securities or any Subsidiary of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Subsidiary of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any interest on any Securities of any series.
"Permitted Investment" of any Person means any Investment of such
Person in (i) direct obligations of the United States or any agency thereof or
obligations guaranteed by the United States or any agency thereof, in each case
maturing within 180 days of the date of
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<PAGE> 24
acquisition thereof, (ii) certificates of deposit maturing within 180 days of
the date of acquisition thereof issued by a bank, trust company or savings and
loan association which is organized under the laws of the United States or any
state thereof having capital, surplus and undivided profits aggregating in
excess of $250 million and a Keefe Bank Watch Rating of C or better (or a
similar rating by any successor thereof), (iii) certificates of deposit maturing
within 180 days of the date of acquisition thereof issued by a bank, trust
company or savings and loan association organized under the laws of the United
States or any state thereof other than banks, trust companies or savings and
loan associations satisfying the criteria in (ii) above; provided that the
aggregate amount of all certificates of deposit issued to the Company at any one
time by such bank, trust company or savings and loan association will not exceed
$100,000, (iv) commercial paper given the highest rating by two established
national credit rating agencies and maturing not more than 180 days from the
date of the acquisition thereof, (v) repurchase agreements or money-market
accounts which are fully secured by direct obligations of the United States or
any agency thereof and (vi) in the case of the Company and its Subsidiaries, any
receivables or loans taken by the Company or a Subsidiary in connection with the
sale of any asset otherwise permitted by this Indenture.
"Permitted Liens" means (i) Liens for taxes, assessments or
governmental charges or claims that either (a) are not yet delinquent or (b) are
being contested in good faith by appropriate proceedings and as to which
appropriate reserves have been established or other provisions have been made in
accordance with GAAP, (ii) statutory Liens of landlords and carriers',
warehousemen's, mechanics', suppliers', materialmen's, repairmen's or other
Liens imposed by law and arising in the ordinary course of business and with
respect to amounts that, to the extent applicable, either (a) are not yet
delinquent or (b) are being contested in good faith by appropriate proceedings
and as to which appropriate reserves have been established or other provisions
have been made in accordance with GAAP, (iii) Liens (other than any Lien imposed
by the Employee Retirement Income Security Act of 1974, as amended) incurred or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, (iv)
Liens incurred or deposits made to secure the performance of tenders, bids,
leases, statutory obligations, surety and appeal bonds, progress payments,
government contracts and other obligations of like nature (exclusive of
obligations for the payment of borrowed money), in each case incurred in the
ordinary course of business of the Company and its Subsidiaries, (v) attachment
or judgment Liens not giving rise to a Default or an Event of Default and which
are being contested in good faith by appropriate proceedings, (vi) easements,
rights-of-way, restrictions and other similar charges or encumbrances not
materially interfering with the ordinary course of business of the Company and
its Subsidiaries, (vii) zoning restrictions, licenses, restrictions on the use
of real property or minor irregularities in title thereto, which do not
materially impair the use of such real property in the ordinary course of
business of the Company and its Subsidiaries or the value of such real property
for the purpose of such business, (viii) leases or subleases granted to others
not materially interfering with the ordinary course of business of the Company
and its Subsidiaries, (ix) purchase money mortgages (including, without
limitation, Capitalized Lease Obligations and
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<PAGE> 25
purchase money security interests), (x) Liens securing Refinancing Indebtedness;
provided that such Liens only extend to assets which are similar to the type of
assets securing the Indebtedness being refinanced and such refinanced
Indebtedness was previously secured by such similar assets, (xi) Liens securing
Indebtedness of the Company and its Restricted Subsidiaries; provided that the
aggregate amount of Indebtedness secured by Liens (other than Non-Recourse
Indebtedness secured by Liens) will not exceed 40 percent of Consolidated
Tangible Net Assets, (xii) any interest in or title of a lessor to property
subject to any Capitalized Lease Obligations incurred in compliance with the
provisions of this Indenture, (xiii) Liens existing on the Issue Date for
Securities of any series, including, without limitation, Liens securing Existing
Indebtedness, (xiv) any option, contract or other agreement to sell an asset;
provided such sale is not otherwise prohibited under this Indenture, (xv) Liens
securing Non-Recourse Indebtedness of the Company or a Restricted Subsidiary
thereof, (xvi) Liens on property or assets of any Restricted Subsidiary securing
Indebtedness of such Restricted Subsidiary owing to the Company or one or more
Restricted Subsidiaries, (xvii) Liens securing Indebtedness of an Unrestricted
Subsidiary, (xviii) any right of a lender or lenders to which the Company or a
Restricted Subsidiary may be indebted to offset against, or appropriate and
apply to the payment of, such Indebtedness any and all balances, credits,
deposits, accounts or monies of the Company or a Restricted Subsidiary with or
held by such lender or lenders and (xix) any pledge or deposit of cash or
property in conjunction with obtaining surety and performance bonds and letters
of credit required to engage in constructing on-site and off-site improvements
required by municipalities or other governmental authorities in the ordinary
course of business of the Company, by the Company or any Restricted Subsidiary.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, incorporated or unincorporated association,
joint stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof or other entity of any kind.
"Place of Payment", when used with respect to the Securities of
any series, means the place or places where the principal of and interest on the
Securities of that series are payable as specified as contemplated by Section
3.01 hereof.
"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.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances or extends any Existing Indebtedness or other Indebtedness permitted
to be Incurred by the Company or its Restricted Subsidiaries pursuant to the
terms of this Indenture, but only to the extent that (i) the Refinancing
Indebtedness is subordinated to the Securities of any series to the same extent
as the Indebtedness being refunded, refinanced or extended, if at all, (ii) the
Refinancing Indebtedness is scheduled to mature either (a) no earlier than the
Indebtedness being refunded, refinanced or extended, or (b) after the maturity
date of the Securities of such series,
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(iii) the portion, if any, of the Refinancing Indebtedness that is scheduled to
mature on or prior to the Maturity date of the Securities of such series has a
Weighted Average Life to Maturity at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Weighted Average Life to Maturity
of the portion of the Indebtedness being refunded, refinanced or extended that
is scheduled to mature on or prior to the maturity date of the Securities of
such series, (iv) such Refinancing Indebtedness is in an aggregate amount that
is equal to or less than the aggregate amount then outstanding under the
Indebtedness being refunded, refinanced or extended, (v) such Refinancing
Indebtedness is Incurred by the same Person that initially Incurred the
Indebtedness being refunded, refinanced or extended, except that the Company may
Incur Refinancing Indebtedness to refund, refinance or extend Indebtedness of
any Restricted Subsidiary and (vi) such Refinancing Indebtedness is Incurred
within 180 days after the Indebtedness being refunded, refinanced or extended is
so refunded, refinanced or extended; provided that Refinancing Indebtedness
shall include the amount of any Indebtedness under the Existing Credit Facility
which is Incurred within 180 days after the repayment of an equal amount of
Indebtedness under the Existing Credit Facility which was Incurred pursuant to
Section 6.13(a) hereof.
"Registrar" has the meaning set forth in Section 3.05 hereof.
"Regular Record Date" for the interest payable on any Security of
any series on any Interest Payment Date means the date specified for that
purpose as contemplated by Section 3.01 hereof.
"Restricted Investment" with respect to any Person means any
Investment (other than any Permitted Investment) by such Person in any (i) of
its Affiliates, (ii) executive officer or director of any Affiliate of such
Person, or (iii) other Person other than a Restricted Subsidiary which is a
Wholly Owned Subsidiary of the referent Person; provided, however, that with
respect to the Company and its Restricted Subsidiaries, any loan or advance to
an executive officer or director of the Company or a Subsidiary will not
constitute a Restricted Investment provided such loan or advance is made in the
ordinary course of business consistent with past practices, and, if such loan or
advance exceeds $100,000 (other than a readily marketable mortgage loan not
exceeding $500,000), such loan or advance has been approved by the Board of
Directors of the Company or a disinterested committee thereof.
"Restricted Payment" with respect to any Person means (i) the
declaration of any dividend or the making of any other payment or distribution
of cash, securities or other property or assets in respect of such Person's
Capital Stock (except that a dividend payable solely in Capital Stock (other
than Disqualified Stock) of such Person will not constitute a Restricted
Payment), (ii) any payment on account of the purchase, redemption, retirement or
other acquisition for value of such Person's Capital Stock or any other payment
or distribution made in respect thereof (other than payments or distributions
excluded from the definitions of Restricted Payment in clause (i) above), either
directly or indirectly, (iii) any Restricted Investment and (iv)
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any principal payment, redemption, repurchase, defeasances or other acquisition
or retirement of any Indebtedness of any Unrestricted Subsidiary or of
Indebtedness of the Company or its Restricted Subsidiaries which is subordinated
in right of payment to the Securities of any series; provided, however, that
with respect to the Company and its Subsidiaries, Restricted Payments will not
include (a) any payment described in clause (i), (ii) or (iii) above made to the
Company or any of its Restricted Subsidiaries which are Wholly Owned
Subsidiaries by any of the Company's Subsidiaries, or (b) any proportionate
payment in respect of minority interests in Restricted Subsidiaries of the
Company to the extent that the payment constitutes a return of capital that was
not included in the Company's shareholders' equity or a dividend or similar
distribution not included in determining the Company's Consolidated Net Income,
or (c) any purchase, redemption, retirement or other acquisition for value of
Indebtedness of the Company or its Restricted Subsidiaries which is subordinated
to the Offered Debt Securities if the consideration therefor consists solely of,
or is the proceeds from, Indebtedness subordinated to the Offered Debt
Securities to the same extent as the Indebtedness being purchased, redeemed,
retired or otherwise acquired, or (d) any purchase, redemption, retirement or
other acquisition for value of Indebtedness or Capital Stock of such Person or
its Subsidiaries if the consideration therefor consists solely of Capital Stock
(other than Disqualified Stock) of such Person, or the proceeds from such sale
of such Capital Stock, or (e) any loans or advances by the Company or any
Restricted Subsidiary to Unrestricted Subsidiaries which in an aggregate amount
at any one time outstanding do not exceed $25,000,000.
"Restricted Subsidiary" means each of the Subsidiaries of the
Company which is not an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission, and any
successor thereto.
"Securities" has the meaning set forth in the first recital of
this Indenture and more particularly means any securities of any series
authenticated and delivered under this Indenture.
"Security Register" has the meaning set forth in Section 3.05
hereof.
"Special Record Date" for the payment of any Defaulted Interest on
any Security means a date fixed by the Trustee pursuant to Section 3.07 hereof.
"Stated Maturity", when used with respect to any Security of any
series or any installment of principal thereof or interest thereon, means the
date specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" of any Person means (i) any corporation of which at
least a majority of the aggregate voting power of all classes of the Common
Equity is directly or indirectly
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beneficially owned by such Person, and (ii) any entity other than a corporation
of which such Person directly or indirectly beneficially owns at least a
majority of the Common Equity.
"Successor" has the meaning set forth in Section 7.01(a) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of the Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include the Person who is then the Trustee hereunder.
"Trust Officer" means any Senior Vice President, Vice President,
Assistant Vice President, Assistant Secretary or Assistant Treasurer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" means (i) any security that is (a) a
direct obligation of the United States for the payment of which the full faith
and credit of the United States is pledged or (b) an obligation 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 (a) or (b), is
not callable or redeemable at the option of the issuer thereof, and (ii) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with respect to any U.S.
Government Obligation specified in clause (i) and held by such custodian for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any such U.S. Government
Obligation; 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 principal or interest
evidenced by such depositary receipt.
"Unrestricted Subsidiary" means each of the Subsidiaries of the
Company so designated by a Board Resolution. The Board of Directors of the
Company may designate an Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that (i) any such redesignation will be deemed to be an Incurrence by
the Company and its Restricted Subsidiaries of the Indebtedness (if any) of such
redesignated Subsidiary for purposes of the covenant set forth in Section 6.13
hereof as of the date of such redesignation and (ii) immediately after giving
effect to such redesignation and the Incurrence of any such additional
Indebtedness, the Company and its Restricted Subsidiaries could Incur $1.00 of
additional Indebtedness under the Consolidated Fixed Charge Coverage Ratio
contained in the covenant set forth in Section 6.13(a) hereof. Subject to the
foregoing, the Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary; provided that (i) all previous
Investments by the
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Company and its Restricted Subsidiaries in such Restricted Subsidiary will be
deemed to be Restricted Payments at the time of such designation and will reduce
the amount available for Restricted Payments under the covenant set forth in
Section 6.12 hereof and (ii) immediately after giving effect to such designation
and reduction of amounts available for Restricted Payments under the covenant
set forth in Section 6.12 hereof, the Company and its Restricted Subsidiaries
could Incur $1.00 of additional Indebtedness under the Consolidated Fixed Charge
Coverage Ratio contained in the covenant set forth in Section 6.13(a) hereof.
Any such designation or redesignation by the Board of Directors of the Company
will be evidenced to the Trustee by the filing with the Trustee of a Board
Resolution giving effect to such designation or redesignation and an Officers'
Certificate certifying that such designation or redesignation complied with the
foregoing conditions and setting forth the underlying calculations of such
Officers' Certificate.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness or portion thereof, at any date, the number of years obtained by
dividing (i) the sum of the products obtained by multiplying (a) the amount of
each then remaining installment, sinking fund, serial maturity or other required
payment of principal, including, without limitation, payment at final maturity,
in respect thereof, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment
by (ii) the then outstanding principal amount of such Indebtedness or portion
thereof.
"Wholly Owned Subsidiary" of any Person means (i) a Subsidiary, of
which 100 percent of the Common Equity (except for directors' qualifying shares
or certain minority interests owned by other Persons solely due to local law
requirements that there be more than one stockholder, but which interest is not
in excess of what is required for such purpose) is owned directly by such Person
or through one or more other Wholly Owned Subsidiaries of such Person, or (ii)
any entity other than a corporation in which such Person, directly or
indirectly, owns all of the Common Equity of such entity.
SECTION 1.03 INCORPORATION BY REFERENCE OF TIA
---------------------------------
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
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ARTICLE 2
SECURITY FORMS
SECTION 2.01 FORMS GENERALLY
Each Security and Global Security issued pursuant to this
Indenture shall be in substantially the form established by or pursuant to an
Officers' Certificate or a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistent herewith, be determined by the
Officers executing such Security as evidenced by their execution of such
Security. If temporary Securities of any series are issued as Global Securities
as permitted by Section 3.04 hereof, the form thereof shall also be established
as provided in the previous sentence. If the form of Securities of any series is
established by action taken pursuant to an Officers' Certificate or a Board
Resolution, a copy thereof shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 3.03 hereof for the
authentication and delivery of such Securities. If all of the Securities of any
series established by action taken pursuant to an Officers' Certificate or a
Board Resolution are not to be issued at one time, it shall not be necessary to
deliver a copy thereof at the time of issuance of each Security of such series,
but such Officers' Certificate or Board Resolution shall be delivered at or
prior to the time of issuance of the first Security of such series.
Securities shall be printed, lithographed or engraved or produced
by any combination of these methods or may be produced in any other manner, all
as determined by the Officers of the Company executing such Securities, as
evidenced by their execution of such Securities.
SECTION 2.02 FORM OF LEGEND FOR GLOBAL SECURITIES
Every Global Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE OF A DEPOSITORY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT
IN SUCH LIMITED CIRCUMSTANCES. EVERY SECURITY DELIVERED UPON REGISTRATION OF
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<PAGE> 31
TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS GLOBAL SECURITY SHALL BE A
GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED ABOVE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS TO BE 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.
SECTION 2.03 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
IBJ SCHRODER BANK & TRUST COMPANY,
As Trustee
By................................
Authorized Signatory
ARTICLE 3
THE SECURITIES
SECTION 3.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
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The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, set forth, or determined
in the manner provided, in an Officers' Certificate, or established in one or
more indentures supplemental hereto, which, in each case, shall be deemed
incorporated herein by this reference and made a part hereof but only with
respect to the series of Securities established pursuant to such Board
Resolution, Officers' Certificate or supplemental indenture, prior to the
issuance of Securities of any series of the following:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.04, 3.05, 3.06, 4.07 or
13.05 hereof and except for any Securities which, pursuant to Section
3.03 hereof, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security is
registered at the close of business on the Regular Record Date for such
interest;
(4) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, or
the method by which such date or dates shall be determined, the Interest
Payment Dates on which any such interest shall be payable and the Regular
Record Date, if any, for the interest payable on any Security on any
Interest Payment Date, or the method by which such date or dates shall be
determined, and the basis upon which interest shall be calculated if
other than on the basis of actual days elapsed over a 365 or 366-day
year;
(6) the place or places, if any, other than or in addition to New
York, New York, where the principal of and interest on Securities of the
series shall be payable, any Securities of the series may be surrendered
for registration of transfer, Securities of the same series may be
surrendered for exchange and, if different from the location specified in
Section 14.02 hereof, the place or places
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where notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(7) the period or periods within, the price or prices at and the
terms and conditions upon, which Securities of the series may be redeemed
or purchased, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or repurchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or repurchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) the currency, currencies or currency units in which payment
of the principal of and interest on any Securities of the series shall be
payable if other than the currency of the United States and the manner of
determining the equivalent thereof in the currency of the United States
for purposes of the definition of "Outstanding" in Section 1.01 hereof;
(11) if the principal of or interest on any Securities of the
series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and
interest on Securities of such series as to which such election is made
shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(12) if the amount of payments of principal of or interest on any
Securities of the series may be determined with reference to an index,
the manner in which such amounts shall be determined;
(13) if other than the principal amount of the Securities of any
series, the portion of the principal amount of such Securities which
shall be payable upon declaration of acceleration of the Maturity
thereof;
(14) if applicable, that the Securities of the series shall be
defeasible as provided in Article 11 hereof;
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(15) if and as applicable, that the Securities of the series shall
be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depository or Depositories for such
Global Security or Global Securities and any circumstances other than
those set forth in Section 3.05 hereof in which any such Global Security
may be transferred to, and registered and exchanged for Securities
registered in the name of, a Person other than the Depository for such
Global Security or a nominee thereof and in which any such transfer may
be registered;
(16) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to Securities
of any series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(17) if other than the Trustee, the identity of each Paying Agent
and Registrar for the Securities of the series; and
(18) any other terms of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and set forth, or determined in the
manner provided, in the Officers' Certificate referred to above or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy thereof shall be delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting forth the terms
of the series.
SECTION 3.02 DENOMINATIONS
In the absence of any specified denomination with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.03 EXECUTION, AUTHENTICATION, DELIVERY AND DATING
The Securities shall be executed on behalf of the Company by two
Officers, under its corporate seal reproduced thereon. The signature of any of
the Officers on the Securities may be manual or by facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall bind
the Company, notwithstanding that such
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<PAGE> 35
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series, executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such an agent. An
authenticating agent has the same rights as an Agent to deal with the Company.
The Company shall pay the reasonable fees and expenses of any authenticating
agent.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Officers' Certificate or Board
Resolutions as permitted by Sections 2.01 and 3.01 hereof, in authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to TIA Sections 315(a) through 315(d)) shall be fully
protected in relying upon, an Opinion of Counsel stating:
(1) if the form or forms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 2.01 hereof,
that such form or forms have been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to an Officers' Certificate or a Board Resolution as permitted
by Section 3.01 hereof, that such terms have been established in
conformity with the provisions of this Indenture; and
(3) that such Securities, when completed by appropriate insertions
and executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued by
the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute the legal, valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, to general equity principles
and to such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities.
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Notwithstanding the provisions of Section 3.01 hereof and of the
preceding paragraph, if all of the Securities of any series are not to be issued
at one time, it shall not be necessary to deliver the Officers' Certificate or
Board Resolution otherwise required pursuant to Section 3.01 hereof or the
Company Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at the time of issuance of each Security of such series, but
such documents shall be delivered at or prior to the time of issuance of the
first Security of such series. Notwithstanding the immediately preceding
sentence, any subsequent request by the Company to the Trustee to authenticate
Securities of such series upon original issuance shall constitute a
representation and warranty by the Company that, as of the date of such request,
the statements made in the Opinion of Counsel delivered pursuant to this Section
3.03 shall be true and correct as if made on such date.
The Trustee shall have the right to decline to authenticate and
deliver such Securities if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken or if the Trustee in good faith by
its board of directors or trustees, executive committee or a trust committee of
directors or trustees and/or officers of the Trustee shall determine that such
action would expose the Trustee to personal liability to existing Holders or
would adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.09 hereof
together with a Company Order (which need not comply with Section 14.08 hereof
and need not be accompanied by an Opinion of Counsel) stating that such Security
has never been issued or sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 3.04 TEMPORARY SECURITIES
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order, the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of
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which they are issued, and with such appropriate insertions, omissions,
substitutions and other variations as the Officers executing such Securities may
determine, as evidenced by their execution of such Securities.
Every temporary Security shall be executed by the Company and
authenticated by the Trustee and registered by the Registrar, upon the same
conditions, and with like effect, as a definitive Security.
If temporary Securities (other than a Global Security) of any
series are issued, the Company will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
a like aggregate principal amount of definitive Securities of the same series of
authorized denominations. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 3.05 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
---------------------------------------------------
(a) The Company shall maintain a register of the Securities of
each series including any Global Security (the "Security Register") in an office
or agency of the Company in a Place of Payment (the "Registrar") where, subject
to Section 3.05(c) hereof and such reasonable regulations as the Company may
prescribe, Securities may be presented for registration of transfer or for
exchange. The Company may appoint one or more co-Registrars. The term
"Registrar" includes any co-Registrar. The Company may change any Registrar
without notice to any Holder. The Company or any of its Subsidiaries may act as
Registrar.
Subject to Section 3.05(c), upon surrender for registration of
transfer of any Security of any series at the office or agency of the Company in
a Place of Payment for that series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount.
Subject to Section 3.05(c), at the option of the Holder,
Securities of any series may be exchanged for other Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
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All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 4.07 or 13.05 hereof not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
4.08 hereof and ending at the close of business on the day of such mailing, or
(ii) to register the transfer or exchange of any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part, or (iii) to issue, register the transfer of or exchange
any Security which has been surrendered for repayment at the option of the
Holder, except the portion, if any, of such Security not to be so repaid.
(b) In case the Company, pursuant to Article 7 hereof, will be
consolidated or merged with or into any other Person or will convey, transfer or
lease substantially all of its properties and assets to any Person, and the
Successor resulting from such consolidation, or surviving such merger, or into
which the Company will have been merged, or the Person which will have received
a conveyance, transfer or lease as aforesaid, will have executed an indenture
supplemental hereto with the Trustee pursuant to Article 7 hereof, any of the
Securities authenticated or delivered prior to such consolidation, merger,
conveyance, transfer or lease may, from time to time, at the request of the
Successor, be exchanged for other Securities executed in the name of the
Successor with such changes in phraseology and form as may be appropriate, but
otherwise in substance and of like tenor as the Securities surrendered for such
exchange and of like principal amount; and the Trustee, upon receipt of an
Officers' Certificate from the Successor, will authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities will at any time be authenticated and delivered in any new name of a
Successor pursuant to this Section 3.05(b) hereof in exchange or substitution
for or upon registration of transfer of any Securities, such Successor, at the
option of the Holders but without
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expense to them, will provide for the exchange of all Securities at the time
outstanding for Securities authenticated and delivered in such new name.
(c) The Company will execute and the Trustee will, in accordance
with this Section 3.05(c) for so long as the Securities of any series are to be
issued in whole or in part in the form of one or more Global Securities,
authenticate and deliver one or more Global Securities that will (i) represent
and will be denominated in an amount equal to the aggregate outstanding
principal amount of the Securities to be represented by such Global Security or
Securities, (ii) be registered in the name of the Depository for such Global
Security or Securities or the nominee of such Depository, (iii) be delivered by
the Trustee to such Depository or pursuant to such Depository's instructions and
(iv) bear the legends set forth in Section 2.02 hereof.
Each Depository appointed in accordance with Section 3.01 hereof
for a Global Security must, at the time of its appointment and at all times
while it serves as Depository, be a clearing agency registered under the
Exchange Act, and any other applicable statute or regulation.
Notwithstanding any other provision of this Section 3.05(c),
unless and until it is exchanged in whole for Securities in definitive form of
any series, a Global Security representing all or a portion of the Securities of
any series may not be transferred except as a whole by the Depository to a
nominee of such Depository or by a nominee of such Depository to such Depository
or another nominee of such Depository or by such Depository or any such nominee
to a successor Depository or a nominee of such successor Depository.
If at any time the Depository is unwilling or unable to continue
as Depository or if at any time the Depository will no longer be eligible to act
as such under this Section 3.05(c), the Company will appoint a successor
Depository. If (i) a successor Depository is not appointed by the Company within
90 days after the Company receives notice from the Depository or otherwise
becomes aware of such unwillingness, inability or ineligibility or (ii) an Event
of Default has occurred and is continuing, the Company will execute and deliver
to the Trustee as promptly as practicable Securities in definitive form,
together with an Officers' Certificate relating to the authentication and
delivery of such Securities, and the Trustee, as promptly as practicable after
the receipt of such Securities and Officers' Certificate, will authenticate and
deliver Securities in definitive form in an aggregate principal amount equal to
the principal amount of, and containing terms and provisions identical to, the
Global Security or Securities in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities will no longer be represented by such Global Security or Securities.
In such event, the Company will execute and deliver to the Trustee Securities in
definitive form, together with an Officers' Certificate relating to the
authentication and delivery of Securities in definitive form, and the Trustee,
as promptly as
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practicable after the receipt of such Securities in definitive form and
Officers' Certificate, will authenticate and deliver Securities in definitive
form in an aggregate principal amount equal to the principal amount of, and
containing terms and provisions identical to, the Global Security or Securities
in exchange for such Global Security or Securities.
Upon the exchange of a Global Security in whole or in part for
Securities in definitive form, such Global Security shall be cancelled by the
Trustee. Securities in definitive form issued in exchange for a Global Security
pursuant to this Section 3.05(c) will be registered in such names and in such
authorized denominations as the Depository, pursuant to instructions from its
direct or indirect participants or otherwise, will instruct the Trustee in
writing. The Trustee will deliver such Securities in definitive form to the
Persons in whose names such Securities are so registered or as it may otherwise
be directed by the Depository. Upon the exchange of less than the entire
principal amount of a Global Security for Securities in definitive form, the
Company will also execute, and the Trustee, upon receipt of an Officers'
Certificate will also authenticate and deliver, a new Global Security in
aggregate principal amount equal to the difference between the principal amount
of the surrendered Global Security and the aggregate principal amount of
Securities in definitive form issuable upon such exchange.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver Securities in definitive form in authorized denominations.
If a Security in definitive form is issued in exchange for any
portion of a Global Security after the close of business at the office or agency
where such exchange occurs on or after any Regular Record Date for an Interest
Payment Date and before the opening of business at such office or agency on the
next Interest Payment Date, interest will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Security in definitive form, but will be payable on such Interest Payment
Date only to the Person to whom interest in respect of such portion of such
Global Security is payable in accordance with the provisions of this Indenture.
None of the Company, the Trustee, any agent of the Trustee, any
Paying Agent or the Registrar will have any responsibility or liability for any
aspect of the Depository's records relating to or payments made on account of
beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any of the Depository's records relating to such
beneficial ownership interests.
SECTION 3.06 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like principal amount and
bearing a number not contemporaneously outstanding.
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If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them and to save each
of them and any agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon receipt of a Company Order
the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or stolen Security, a new Security of the same series and of like principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, instruct the Paying Agent to pay such
Security.
Upon the issuance of any new Security under this Section 3.06, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section
3.06 in lieu of any mutilated, destroyed, lost or stolen Security, shall
constitute an original additional contractual obligation of the Company, whether
or not the mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section 3.06 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
----------------------------------------------
Except as otherwise provided as contemplated by Section 3.01
hereof with respect to any series of Securities, interest on any Security which
is payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security is registered at
the close of business on the Regular Record Date for such interest at the office
or agency of the Company maintained for such purpose pursuant to Section 6.02
hereof.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such defaulted interest and, if
applicable, interest on such defaulted interest (to the extent lawful) at the
rate specified in the Securities of such series (such defaulted interest and, if
applicable,
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interest thereon herein collectively called "Defaulted Interest") may be paid by
the Company, at its election in each case, as provided in clause (i) or (ii)
below:
(i) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of
such series are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money (except as otherwise specified pursuant
to Section 3.01 hereof for the Securities of such series) equal to
the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon, the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first class postage prepaid, to
each Holder of Securities of such series at its address as it
appears in the Security Register, not less than 10 days prior to
such Special Record Date and notice shall be considered given
whether or not received by the Holder. If notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor have been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful manner
not inconsistent with the requirements of the securities exchange on
which such Securities may be listed, if any, and upon such notice as
may be required by such exchange, if, after written notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
The provisions of this Section 3.07 may be applicable to any
series of Securities pursuant to Section 3.01 hereof (with such modifications,
additions or substitutions as may be specified pursuant to such Section 3.01
hereof).
Subject to the foregoing provisions of this Section 3.07 and
Section 3.05 hereof, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or
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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 3.08 PERSONS DEEMED OWNERS
Subject to Section 3.05(c), prior to due presentment of a Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of and (except as contemplated by Section 3.05 hereof and subject to
Section 3.07 hereof) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or Trustee shall be affected by notice
to the contrary.
SECTION 3.09 CANCELLATION
All Securities surrendered for payment, redemption, repayment at
the option of the Holder, if applicable, registration of transfer or exchange or
for credit against any current or future sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be accompanied by an Officers' Certificate authorizing such
cancellation, and shall be promptly cancelled by the Trustee. If the Company
shall so acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the Indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of as directed by a Company Order.
SECTION 3.10 COMPUTATION OF INTEREST
Except as otherwise specified as contemplated by Section 3.01
hereof for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 365 or 366-day year.
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ARTICLE 4
REDEMPTION
SECTION 4.01 APPLICABILITY OF ARTICLE
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms and in
accordance with this Article 4.
SECTION 4.02 ELECTION TO REDEEM; NOTICE TO TRUSTEE
In the event the Company elects to redeem Securities of any series
pursuant to the optional redemption provisions of Section 4.08 hereof, it will
notify the Trustee in writing, at least 30 days but not more than 60 days before
a redemption date, of the redemption date and the principal amount of Securities
of a series to be redeemed.
SECTION 4.03 SELECTION OF SECURITIES TO BE REDEEMED
(a) In the event less than all of the Outstanding Securities of a
series are to be redeemed, the Trustee will select the Securities of such series
to be redeemed pro rata or by lot or by any other method the Trustee deems fair
and appropriate but only in integral multiples of $1,000. The particular
Securities of a series to be redeemed will be selected, unless otherwise
provided herein, not less than 20 nor more than 60 days prior to the redemption
date by the Trustee from the Outstanding Securities of such series not
previously called for redemption.
(b) The Trustee will promptly notify the Company in writing of the
Securities of such series selected for redemption and, in the case of any
Security of a series selected for partial redemption, the principal amount
thereof to be redeemed but not in integral multiples of less than $1,000.
Provisions of this Indenture that apply to Securities of a series called for
redemption also apply to portions of Securities of a series called for
redemption.
SECTION 4.04 NOTICES TO HOLDERS
(a) At least 15 days but not more than 60 days before a redemption
date, the Company will mail a notice to each Holder whose Securities are to be
redeemed.
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(b) The notice will identify the Securities of the series to be
redeemed and will state:
(i) the redemption date;
(ii) the redemption price;
(iii) if any Outstanding Security of any series is being
redeemed in part, the portion of the principal amount of such Security to
be redeemed and that, after the redemption date, upon surrender of such
Security, a new Security or Securities in principal amount equal to the
unredeemed portion will be issued;
(iv) the name and address of the Paying Agent;
(v) that Securities called for redemption must be surrendered
to the Paying Agent at the address specified in such notice to collect
the redemption price;
(vi) that interest on Securities called for redemption ceases
to accrue on and after the redemption date;
(vii) that the redemption is for a sinking fund, if such is
the case;
(viii) the aggregate principal amount of Securities that are
being redeemed; and
(ix) that funds for the redemption price shall be deposited in
accordance with Section 4.06 hereof, failing which the notice shall be
deemed cancelled.
(c) At the Company's written request, the Trustee will give the
notice required in this Section 4.04 in the Company's name and at its expense.
SECTION 4.05 EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed, Outstanding Securities of
such series called for redemption become due and payable on the redemption date
at the redemption price and, subject to Section 4.06(b) hereof, interest on such
Securities ceases to accrue on and after the redemption date.
SECTION 4.06 DEPOSIT OF REDEMPTION PRICE
(a) At least one Business Day prior to the redemption date, the
Company will deposit with the Trustee or with the Paying Agent (or, if the
Company is acting as its own Paying
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Agent, segregate and hold in trust as provided in Section 6.04 hereof) money
sufficient to pay the redemption price of, and accrued and previously unpaid
interest on, all Securities of such series to be redeemed on that date, and the
Trustee will remit the redemption price to Holders entitled thereto. The Trustee
or the Paying Agent will return to the Company any money not required for that
purpose.
(b) If the Company complies with Section 4.06(a) hereof, interest
on the Securities of such series or portions thereof to be redeemed (whether or
not such Securities are presented for payment) will cease to accrue on the
applicable redemption date. If any Security of such series called for redemption
is not so paid upon surrender because of the failure of the Company to comply
with Section 4.06(a) hereof, then interest will be paid on the unpaid principal
from the last Interest Payment Date until such principal is paid in full at the
rate determined pursuant to Section 3.01 hereof for the Securities of such
series.
SECTION 4.07 SECURITIES REDEEMED IN PART
Upon surrender of a Security of such series that is redeemed in
part, the Company will issue and the Trustee will authenticate for the Holder at
the expense of the Company a new Security of the same series, maturity date,
interest rate and Issue Date equal in principal amount to the unredeemed portion
of the Security of such series surrendered.
SECTION 4.08 OPTIONAL REDEMPTION
The Company may redeem all or any portion of the Outstanding
Securities of any series at any time and from time to time that are redeemable
before their maturity except as otherwise specified as contemplated by Section
3.01 hereof for Securities of such series at the redemption prices together in
each case, with accrued interest, if any, to the date fixed for redemption,
determined pursuant to Section 3.01 hereof.
ARTICLE 5
SINKING FUNDS
SECTION 5.01 APPLICABILITY OF ARTICLE
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, retirements of Securities of any series pursuant to
any sinking fund shall be made in accordance with their terms and in accordance
with this Article 5.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any
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payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking fund payment." If
provided for by the terms of Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 5.02
hereof. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 5.02 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES
-----------------------------------------------------
Subject to Section 5.03 hereof, in lieu of making all or any part
of any mandatory sinking fund payment with respect to any Securities of a series
in cash, the Company may at its option (i) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or acquired by the Company and/or (ii) receive credit for
the principal amount of Securities of a series which have been previously
delivered to the Trustee by the Company or for Securities of such series which
have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any mandatory sinking fund payment with respect to the
Securities of the same series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the redemption price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 5.03 REDEMPTION OF SECURITIES FOR SINKING FUND
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering or crediting Securities of that series
pursuant to Section 5.02 hereof (which Securities will, if not previously
delivered, accompany such Officers' Certificate) and whether the Company intends
to exercise its right to make a permitted optional sinking fund payment with
respect to such series. Such Officers' Certificate shall be irrevocable and upon
its delivery the Company shall be obligated to make the cash payment or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
Officers' Certificate, the sinking fund payment due on the next succeeding
sinking fund payment date for that series shall be paid entirely in cash and
shall be sufficient to redeem the principal amount of such Securities subject to
a mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 5.02 hereof and without the right to make any
optional sinking fund payment, if any, with respect to such series.
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Not more than 60 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 4.03 hereof and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 4.04 hereof. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Article 4 hereof.
Prior to any sinking fund payment date, the Company shall pay to
the Trustee or a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 6.04 hereof) in cash a
sum equal to any interest that will accrue to the date fixed for redemption of
Securities or portion thereof to be redeemed on such sinking fund payment date
pursuant to this Section 5.03.
Notwithstanding the foregoing, with respect to a sinking fund for
any series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Company shall not
instruct the Trustee to give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking fund. Any such
unused balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next succeeding
sinking fund payment date or, at the request of the Company, shall be applied at
any time or from time to time to the purchase of Securities of such series, by
public or private purchase as negotiated by the Company, in the open market or
otherwise, at a purchase price for such Securities (excluding accrued interest
and brokerage commissions, for which the Trustee or any Paying Agent will be
reimbursed by the Company) not in excess of the principal amount thereof.
ARTICLE 6
COVENANTS
SECTION 6.01 PAYMENT OF SECURITIES
(a) The Company will pay the principal of, and interest on, the
Securities of each series on the dates and in the manner provided herein and in
the Securities. In the event the Company is not the Paying Agent, principal and
interest will be considered paid on the date due if the Trustee or Paying Agent
holds on that date money deposited by the Company designated for and sufficient
to pay all principal and interest then due. In the event the Company is the
Paying Agent, principal and interest will be considered paid on the date actual
payment is mailed to the Holders entitled to such payments.
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(b) The Company will pay interest on overdue principal at the
applicable interest rate on the Securities of each series as determined in
accordance with Section 3.01 hereof.
SECTION 6.02 MAINTENANCE OF OFFICE OR AGENCY
-------------------------------
(a) The Company will maintain in each Place of Payment for any
series of Securities, in New York, New York, an office or agency (which may be
an office of the Trustee or the Registrar) where Securities of such series may
be presented or surrendered for payment, where Securities of that series may be
presented for registration of transfer or exchange and where notices and demands
to or upon the Company in respect of the Securities of such series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company fails to maintain any such required office or
agency or fails to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
(b) The Company may also from time to time designate one or more
other offices or agencies where the Securities of each series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
will in any manner relieve the Company of its obligation to maintain an office
or agency in New York, New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
(c) The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with this
Section 6.02.
SECTION 6.03 SEC REPORTS; FINANCIAL STATEMENTS
---------------------------------
(a) As long as more than 10 percent of the original principal
amount of the Securities of any series is Outstanding, the Company will (i)
remain subject to the requirements of Section 13 or 15(d) of the Exchange Act
whether or not it is required to do so by the provisions thereof and will file
with the SEC all periodic reports as may be required thereunder and (ii) file
with the SEC, and the Trustee within 15 days after the Company is required to
file the same with the SEC, copies of the periodic reports which the Company may
be required to file with the SEC pursuant to Section 13(a), 13(c) or 15(d) of
the Exchange Act. The Company will also make such reports available to the
Holders, prospective purchasers of the Securities of any such series, securities
analysts and broker-dealers upon their written request.
(b) In the event that (i) 10 percent or less of the original
principal amount of the Securities of any series is Outstanding and (ii) the
Company is not required to file with the
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SEC such reports and other information referred to in Section 6.03(a) hereof,
the Company will furnish to the Trustee (A) within 120 days after the end of
each fiscal year, annual reports containing the information required to be
contained in Items 1, 2, 3, 5, 6, 7, 8 and 9 of the Annual Report on Form 10-K
promulgated under the Exchange Act, or substantially the same information
required to be contained in comparable items of any successor form, (B) within
60 days after the end of each of the first three fiscal quarters of each fiscal
year, quarterly reports containing the information required to be contained in
the Quarterly Report on Form 10-Q promulgated under the Exchange Act, or
substantially the same information required to be contained in any successor
form and (C) promptly from the time after the occurrence of an event which would
be required to be reported in the Current Report on Form 8-K if the Company was
required to file such Report, such other reports containing information required
to be contained in the Current Report on Form 8-K promulgated under the Exchange
Act, or substantially the same information required to be contained in any
successor form.
(c) The Company will also comply with the other provisions of TIA
Section 314(a).
SECTION 6.04 MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST
-----------------------------------------------
(a) In the event the Company will at any time act as its own
Paying Agent with respect to any series of Securities, it will, not less than
one Business Day before each due date of the principal of or interest on any of
the Securities of any series, segregate and hold in trust for the benefit of the
Holders entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums will be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure to so act.
(b) In the event the Company is not acting as Paying Agent with
respect to any series of Securities, the Company will, not less than one
Business Day before each due date of the principal of or interest on, any
Securities of any series, deposit with a Paying Agent a sum in same day funds
sufficient to pay the principal or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of such action or any failure to so act.
(c) In the event the Company is not acting as Paying Agent with
respect to any series of Securities, the Company will cause each Paying Agent
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent will agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of the
principal of or interest on Securities of such series in trust for the benefit
of the Holders of such series of
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Securities and the Trustee entitled thereto until such sums will be paid to such
Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any Default by the
Company in the making of any payment of principal or interest;
(iii) at any time during the continuance of any such
Default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(iv) acknowledge, accept and agree to comply in all
aspects with the provisions of this Indenture relating to the duties, rights and
disabilities of such Paying Agent.
(d) The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
(e) Except as provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of or interest on any
Security of any series and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in New York, New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 6.05 COMPLIANCE CERTIFICATE
(a) The Company will deliver to the Trustee within 120 days
after the end of each fiscal year of the Company an Officers' Certificate
stating whether or not the signers know
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of any Default or Event of Default that occurred during such period. If they do
know of a Default or an Event of Default, the Officers' Certificate will
describe the Default or Event of Default and the action the Company is taking or
proposes to take with respect thereto.
(b) The Company will give prompt written notice to the Trustee
of the occurrence of any Default or Event of Default.
SECTION 6.06 CORPORATE EXISTENCE, ETC.
Subject to the provisions of Article 7 hereof, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and the rights (charter and statutory),
licenses and franchises of the Company, except in such cases where a failure to
do so would not in the judgment of management have a material adverse effect on
the business, prospects, assets or financial condition of the Company and its
Subsidiaries taken as a whole and would not have a materially adverse impact on
the Holders of Securities of any series.
SECTION 6.07 PAYMENT OF TAXES AND OTHER CLAIMS
The Company will pay or discharge or cause to be paid or
discharged, before the same will become delinquent, (i) all taxes, assessments
and governmental charges levied or imposed upon the Company or upon the income,
profits or property of the Company other than any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings and for which appropriate provision has been
made in accordance with GAAP and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a Lien (other than a Permitted
Lien) upon the property of the Company, in each case except to the extent the
failure to do so would not have, in the judgment of management, a material
adverse effect on the Company and its Subsidiaries taken as a whole.
SECTION 6.08 INSURANCE
The Company will maintain and will cause each of its Restricted
Subsidiaries to maintain (either in the name of the Company or in such
Restricted Subsidiary's own name) with third party insurance companies or
pursuant to self-insurance, (i) insurance on all their respective properties,
(ii) public liability insurance against claims for personal injury or death as a
result of the use of any products sold by it and (iii) insurance coverage
against other business risks, in each case, in at least such amounts and against
at least such other risks (and with such risk retention) as are usually and
prudently insured against in the same general area by companies engaged in the
same or a similar business.
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SECTION 6.09 STAY, EXTENSION AND USURY LAWS
------------------------------
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
Company's obligation to pay the Securities of each series, and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law insofar as such law applies to the Securities of each
series, and covenants that it will not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law has
been enacted.
SECTION 6.10 MAINTENANCE OF PROPERTIES
-------------------------
The Company will take reasonable action to maintain in
appropriate condition each of its principal properties which in the judgment of
management is essential to the business operations of the Company and its
Subsidiaries taken as a whole and the loss of which would have a material
adverse affect on the financial condition of the Company and its Subsidiaries
taken as a whole. Nothing contained in this Section 6.10 will prevent or
restrict the sale, abandonment or other disposition of any property which
management deems advisable.
SECTION 6.11 DISPOSITION OF PROCEEDS OF ASSET SALES
--------------------------------------
(a) Subject to the provisions set forth in Section 7.01 hereof,
the Company will not, and will not permit any Restricted Subsidiary to, directly
or indirectly, make any Asset Sale unless (i) the Company or the Restricted
Subsidiary, as the case may be, receives consideration at the time of such Asset
Sale at least equal to the Fair Market Value for the shares or assets sold or
otherwise disposed of (which will be determined in good faith by the Board of
Directors of the Company); provided, that the aggregate Fair Market Value of the
consideration received from any Asset Sale that is not in the form of cash or
cash equivalents will not, when aggregated with the Fair Market Value of all
other non-cash consideration received by the Company and its Restricted
Subsidiaries from all previous Asset Sales since the Issue Date for Securities
of any series that has not been converted into cash or cash equivalents, exceed
five percent of the Consolidated Tangible Net Assets of the Company at the time
of the Asset Sale under consideration, and (ii) the Company will apply the
aggregate Net Proceeds received by the Company or any Restricted Subsidiary from
all Asset Sales occurring subsequent to such Issue Date as follows: (A) to repay
any outstanding Indebtedness of the Company that is not subordinated to the
Securities, or other Indebtedness of the Company, or to the payment of any
Indebtedness of any Restricted Subsidiary, in each case within one year after
such Asset Sale or (B) to replace the properties and assets that were the
subject of the Asset Sale or in properties and assets that (as determined by the
Board of Directors of the Company, whose determination will be conclusive) will
be used in the businesses existing on the Issue Date of Securities of such
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<PAGE> 54
series of the Company and its Restricted Subsidiaries or in businesses
reasonably related thereto within one year after such Asset Sale. The amount of
such Net Proceeds neither used to repay the Indebtedness described above nor
used or invested as set forth in the preceding sentence constitutes "Excess
Proceeds."
(b) Notwithstanding Section 6.11(a)(ii) hereof, to the extent
the Company or any of its Restricted Subsidiaries receives securities or other
noncash property or assets as proceeds of an Asset Sale, the Company will not be
required to make any application of such noncash proceeds required by Section
6.11(a) hereof until it receives cash or cash equivalent proceeds from a sale,
repayment, exchange, redemption or retirement of or extraordinary dividend or
return of capital on such noncash property. Any amounts deferred pursuant to the
preceding sentence will be applied in accordance with Section 6.11(a) hereof
when cash proceeds are thereafter received from a sale, repayment, exchange,
redemption or retirement of an extraordinary dividend or return of capital on
such noncash property.
(c) When the aggregate amount of Excess Proceeds equals
$5,000,000 or more, the Company will so notify the Trustee in writing by
delivery of an Officers' Certificate and will offer to purchase from all Holders
(an "Excess Proceeds Offer"), and will purchase from Holders accepting such
Excess Proceeds Offer on the date fixed for the closing of such Excess Proceeds
Offer (the "Asset Sale Offer Date"), the maximum principal amount (expressed as
a multiple of $1,000) of Securities of each series that may be purchased out of
the Excess Proceeds, at an offer price (the "Asset Sale Offer Price") in cash in
an amount equal to 100 percent of the principal amount thereof plus accrued and
unpaid interest, if any, to the Asset Sale Offer Date, in accordance with the
procedures set forth in this Section 6.11. To the extent that the aggregate
amount of Securities of each series tendered pursuant to an Excess Proceeds
Offer is less than the Excess Proceeds relating thereto, then the Company may
use the Excess Proceeds which exceed the aggregate amount of Securities of each
series tendered pursuant to such Excess Proceeds Offer for general corporate
purposes. Upon completion of an Excess Proceeds Offer, the amount of Excess
Proceeds will be reset at zero.
(d) Within 30 days after the date on which the amount of Excess
Proceeds equals $5,000,000 or more, the Company (with written notice to the
Trustee) or the Trustee at the Company's request (and at the expense of the
Company) will send or cause to be sent by first-class mail, postage prepaid, to
all Holders on the date such Excess Proceeds equals $5,000,000, at their
respective addresses appearing in the Security Register, a notice, as prepared
by the Company advising the Holders of such series, of such occurrence and of
such Holders' rights arising as a result thereof. Such notice will contain all
instructions and materials necessary to enable Holders to tender their
Securities of any series to the Company. Such notice, which will govern the
terms of the Excess Proceeds Offer, will state:
(i) that the Excess Proceeds Offer is being made
pursuant to this Section 6.11 and the length of time such Excess Proceeds Offer
will remain open;
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(ii) that the Holder has the right to require the
Company to repurchase such Holder's Securities of such series at the Asset Sale
Offer Price;
(iii) that any Security of such series not tendered
will continue to accrue interest;
(iv) that any Security of such series accepted for
payment pursuant to the Excess Proceeds Offer will cease to accrue interest on
the Asset Sale Offer Date;
(v) that the Asset Sale Offer Date will be no
earlier than 45 days nor later than 60 days from the date such notice is mailed;
(vi) that Holders electing to have a Security of such
series purchased pursuant to any Excess Proceeds Offer will be required to
surrender the Security of such series, with the appropriate form on the Security
of such series completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice prior to
termination of the Excess Proceeds Offer;
(vii) that Holders will be entitled to withdraw their
election if the Company, depositary or Paying Agent, as the case may be,
receives, not later than the expiration of the Excess Proceeds Offer, or such
longer period as may be required by law, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Security of such series the Holder delivered for purchase and a
statement that such Holder is withdrawing its election to have the Security of
such series purchased;
(viii) that Holders whose Securities of such series
are purchased only in part will be issued Securities of the same series,
Maturity date, interest rate and Issue Date equal in principal amount to the
unpurchased portion of the Securities of such series surrendered; and
(ix) information concerning the details of the Excess
Proceeds Offer and the business of the Company which the Company in good faith
believes will enable such Holders to make an informed decision (which at a
minimum will include (A) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the Company, the most
recent subsequently filed Quarterly Report on Form 10-Q and any Current Report
on Form 8-K of the Company filed subsequent to such Quarterly Report, other than
Current Reports describing Asset Sales otherwise described in the offering
materials relating to the Excess Proceeds Offer (or corresponding successor
reports) (or in the event the Company is not required to prepare any of the
foregoing Forms, the comparable information required pursuant to Section 6.03(b)
hereof); provided that the Company may at its option incorporate by reference
any such filed reports in the notice, (B) a description of material developments
in the
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Company's business subsequent to the date of the latest of such reports and (C)
if material, appropriate pro forma financial information.
(e) In the event the aggregate principal amount of Securities
of any series surrendered by Holders exceeds the amount of Excess Proceeds, the
Company will select the Securities of each series to be purchased on a pro rata
basis from all Securities of any series so surrendered, with such adjustments as
may be deemed appropriate by the Company so that only Securities of any series
in denominations of $1,000, or integral multiples thereof, will be purchased. To
the extent that the Excess Proceeds remaining are less than $1,000, the Company
may use such Excess Proceeds for general corporate purposes. Holders whose
Securities of any series are purchased only in part will be issued new
Securities of the same series, Maturity date, interest rate and Issue Date equal
in principal amount to the unpurchased portion of the Securities of such series
surrendered.
(f) The Company will not, and will not permit any Restricted
Subsidiary to, create or permit to exist or become effective any restriction
(other than any restriction set forth in any agreement, indenture, document or
instrument relating to any Existing Indebtedness or Refinancing Indebtedness
with respect thereto) that would materially impair the ability of the Company to
make an Excess Proceeds Offer. Notwithstanding the foregoing, if an Excess
Proceeds Offer is made, the Company will pay for Securities of any series
tendered for purchase in accordance with the terms of this Section 6.11.
(g) Not later than one Business Day prior to the Asset Sale
Offer Date in connection with which the Excess Proceeds Offer is being made, the
Company will (i) accept for payment Securities of any series or portions thereof
tendered pursuant to the Excess Proceeds Offer (on a pro rata basis if required
pursuant to Section 6.11(e) hereof), (ii) deposit with the Paying Agent money
sufficient, in immediately available funds, to pay the purchase price of all
Securities of any series or portions thereof so accepted and (iii) deliver to
the Paying Agent an Officers' Certificate identifying the Securities of such
series or portions thereof accepted for payment by the Company. The Paying Agent
will promptly after acceptance mail or deliver to Holders of Securities of any
series so accepted payment in an amount equal to the Asset Sale Offer Price of
the Securities of such series purchased from each such Holder, and the Company
will execute and upon receipt of an Officers' Certificate of the Company the
Trustee will promptly authenticate and mail or deliver to such Holder a new
Security of the same series, Maturity date, interest rate and Issue Date equal
in principal amount to any unpurchased portion of the Security surrendered. Any
Securities of such series not so accepted will be promptly mailed or delivered
by the Paying Agent at the Company's expense to the Holder thereof. The Company
will publicly announce the results of the Excess Proceeds Offer on the Asset
Sale Offer Date. For purposes of this Section 6.11(g), the Company will choose a
Paying Agent which will not be the Company or a Subsidiary thereof. Any excess
cash held by the Trustee after the expiration of the Excess Proceeds Offer will
be returned to the Company.
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<PAGE> 57
(h) Any Excess Proceeds Offer will be conducted by the Company
in compliance with applicable law, including, without limitation, Section 14(e)
of the Exchange Act and Rule 14e-1 thereunder, if applicable.
(i) Whenever Excess Proceeds are received by the Company, and
prior to the allocation of such Excess Proceeds pursuant to this Section 6.11,
such Excess Proceeds will be set aside by the Company in a separate account to
be held in trust for the benefit of the Holders; provided, however, that in the
event the Company will be unable to set aside such Excess Proceeds in a separate
account because of provisions of applicable law or of any agreement, indenture,
document or instrument relating to Existing Indebtedness or Refinancing
Indebtedness with respect thereto, the Company will not be required to set aside
such Excess Proceeds.
SECTION 6.12 LIMITATIONS ON RESTRICTED PAYMENTS
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, make any Restricted Payment, directly or indirectly,
after the Issue Date of Securities of any series if at the time of such
Restricted Payment:
(i) the amount of such Restricted Payment (the
amount of such Restricted Payment, if other than in
cash, will be determined by the Board of Directors of
the Company), when added to the aggregate amount of all
Restricted Payments made after the Issue Date of the
Securities of any series, exceeds the sum of: (1)
$50,000,000, plus (2) 50 percent of the Company's
Consolidated Net Income accrued during the period (taken
as a single period) since January 1, 1995 (or, if such
aggregate Consolidated Net Income is a deficit, minus
100 percent of such aggregate deficit), plus (3) the net
cash proceeds derived from the issuance and sale of
Capital Stock of the Company and its Restricted
Subsidiaries that is not Disqualified Stock (other than
a sale to a Subsidiary of the Company) after the Issue
Date of Securities of any series but only to the extent
not applied under clause (c) of the definition of
"Restricted Payment" set forth in Section 1.02 hereof,
plus (4) 100 percent of the principal amount of any
Indebtedness of the Company or a Restricted Subsidiary
that is converted into or exchanged for Capital Stock of
the Company that is not Disqualified Stock, plus (5) 100
percent of the aggregate amounts received by the Company
or any Restricted Subsidiary upon the sale, disposition
or liquidation (including by way of dividends) of any
Investment but only to the extent (x) not included in
Section 6.12(a)(i)(2) above and (y) that the making of
such Investment constituted a Restricted Investment made
pursuant to this Section 6.12(a)(i), plus (6) 100
percent of the principal amount of, or if issued at a
discount the accreted value of, any Indebtedness or
other obligation that is the subject of a guaranty by
the Company which is released after the Issue Date of
Securities of any series, but only to the extent that
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<PAGE> 58
the granting of such guaranty constituted a "Restricted
Payment" under the definition set forth in Section 1.02 hereof;
or
(ii) the Company would be unable to incur an additional
$1.00 of Indebtedness under the Consolidated Fixed Charge
Coverage Ratio contained in the covenant set forth in Section
6.13(a) hereof; or
(iii) a Default or Event of Default has occurred and is
continuing or occurs as a consequence thereof.
(b) Notwithstanding the foregoing, the provisions of this
Section 6.12 will not prevent: (i) the payment of any dividend within 60 days
after the date of declaration thereof if the payment thereof would have complied
with the limitations of this Indenture on the date of declaration or (ii) the
retirement of shares of the Company's Capital Stock or the Company's or a
Subsidiary of the Company's Indebtedness for, in exchange for or out of the
proceeds of a substantially concurrent sale (other than a sale to a Subsidiary
of the Company) of, other shares of its Capital Stock (other than Disqualified
Stock).
SECTION 6.13 LIMITATIONS ON ADDITIONAL INDEBTEDNESS
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to Incur any Indebtedness (other than Indebtedness
between the Company and its Restricted Subsidiaries which are Wholly Owned
Subsidiaries or among such Restricted Subsidiaries which are Wholly Owned
Subsidiaries), including Acquisition Debt, unless, after giving effect thereto
or the application of the proceeds therefrom, the (i) Company's Consolidated
Fixed Charge Coverage Ratio on the date thereof would be at least 2.0 to 1.0;
and (ii) ratio of the Company's Indebtedness (excluding Non-Recourse
Indebtedness) to Consolidated Tangible Net Worth on the date thereof is not
greater than 2.25 to 1.0.
(b) Notwithstanding the foregoing, the provisions of this
Indenture will not prevent: (i) in addition to the Indebtedness permitted to be
Incurred under clauses (ii) and (iii) of this sentence and Indebtedness
permitted to be Incurred under Section 6.13(a) hereof, the Company from
Incurring (A) Refinancing Indebtedness, (B) Non-Recourse Indebtedness and (C)
Indebtedness Incurred for working capital purposes or to finance the
acquisition, holding or development of property by the Company and its
Restricted Subsidiaries (including, without limitation, the financing of any
related interest reserve) in the ordinary course of business in an aggregate
amount at any one time outstanding not to exceed $130,000,000 (excluding any
Indebtedness referred to in Section 6.13(a) hereof and subclauses (i)(A),
(i)(B), (ii) and (iii) of this Section 6.13(b)), less the amount of any
Indebtedness repaid pursuant to Section 6.11(a)(ii)(A) hereof, (ii) Unrestricted
Subsidiaries from Incurring Indebtedness, (iii) the Company and its Restricted
Subsidiaries from Incurring Indebtedness under any deposits made to secure
performance of tenders, bids, leases, statutory obligations, surety and appeal
bonds,
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progress statements, government contracts and other obligations of like nature
(exclusive of the obligation for the payment of borrowed money), in each case
Incurred in the ordinary course of business of the Company or the Restricted
Subsidiary consistent with past practice and (iv) Restricted Subsidiaries from
guaranteeing Indebtedness of the Company or another Restricted Subsidiary;
provided that the tangible net assets of all Restricted Subsidiaries
guaranteeing Indebtedness of the Company or other Restricted Subsidiaries at the
end of the fiscal quarter immediately preceding the date of Incurring any such
guaranty, as determined in accordance with GAAP, shall not exceed 10% of the
Company's Consolidated Tangible Net Assets.
SECTION 6.14 RESTRICTIONS ON RESTRICTED SUBSIDIARY INDEBTEDNESS
--------------------------------------------------
The Company will not permit any of its Restricted Subsidiaries
to, directly or indirectly, Incur any additional Indebtedness after the Issue
Date of Securities of any series other than: (i) Refinancing Indebtedness, (ii)
Non-Recourse Indebtedness, (iii) Indebtedness to the Company, (iv) any deposits
made to secure performance of tenders, bids, leases, statutory obligations,
surety and appeal bonds, progress statements, government contracts, and other
obligations of like nature (exclusive of the obligation for the payment of
borrowed money), in each case Incurred in the ordinary course of business of the
Restricted Subsidiary and (v) any guaranty of Indebtedness of the Company or
another Restricted Subsidiary; provided that the tangible net assets of all
Restricted Subsidiaries guaranteeing Indebtedness of the Company or other
Restricted Subsidiaries at the end of the fiscal quarter immediately preceding
the date of Incurring any such guaranty, as determined in accordance with GAAP,
shall not exceed 10% of the Company's Consolidated Tangible Net Assets.
SECTION 6.15 LIMITATIONS AND RESTRICTIONS ON CAPITAL STOCK OF SUBSIDIARIES
-------------------------------------------------------------
The Company will not permit any of its Restricted Subsidiaries
to issue, or permit to be outstanding at any time, Preferred Stock or any other
Capital Stock constituting Disqualified Stock.
SECTION 6.16 CHANGE OF CONTROL
-----------------
(a) Following the occurrence of any Change of Control, the
Company will so notify the Trustee in writing by delivery of an Officers'
Certificate and will offer to purchase (a "Change of Control Offer") from all
Holders, and will purchase from Holders accepting such Change of Control Offer
on the date fixed for the closing of such Change of Control Offer (the "Change
of Control Payment Date"), the Outstanding Securities of each series at an offer
price (the "Change of Control Price") in cash in an amount equal to 101 percent
of the aggregate principal amount thereof plus accrued and unpaid interest, if
any, to the Change of Control Payment Date in accordance with the procedures set
forth in this Section 6.16.
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(b) Within 30 days after the date of any Change of Control, the
Company (with written notice to the Trustee) or the Trustee at the Company's
request (and at the expense of the Company), will send or cause to be sent by
first class mail, postage prepaid, to all Holders on the date of the Change of
Control at their respective addresses appearing in the Security Register a
notice, as prepared by the Company advising the Holders of such series,
of the occurrence of such Change of Control and of the Holders' rights
arising as a result thereof. Such notice will contain all instructions and
materials necessary to enable Holders to tender their Securities of such series
to the Company. Such notice, which will govern the terms of the Change of
Control Offer, will state:
(i) that the Change of Control Offer is being made
pursuant to Section 6.16(a) hereof and the length of time the Change of Control
Offer will remain open;
(ii) that the Holder has the right to require the Company
to repurchase such Holder's Securities of such series at the Change of Control
Price;
(iii) that any Security of such series not tendered will
continue to accrue interest;
(iv) that any Security of such series accepted for payment
pursuant to the Change of Control Offer will cease to accrue interest on the
Change of Control Payment Date;
(v) that the Change of Control Payment Date will be no
earlier than 45 days nor later than 60 days from the date such notice is mailed;
(vi) that Holders electing to have a Security of such
series purchased pursuant to any Change of Control Offer will be required to
surrender the Security of such series, with the appropriate form on the Security
of such series completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice prior to
termination of the Change of Control Offer;
(vii) that Holders will be entitled to withdraw their
election if the Company, depositary or Paying Agent, as the case may be,
receives, not later than the expiration of the Change of Control Offer, or such
longer period as may be required by law, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Security of such series the Holder delivered for purchase and a
statement that such Holder is withdrawing its election to have the Security of
such series purchased;
(viii) that Holders which elect to have their Securities
purchased only in part will be issued new Securities of the same series,
Maturity date, interest rate and Issue Date in a principal amount equal to the
unpurchased portion of the Securities of such series surrendered; and
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(ix) information concerning the date and details of the
Change of Control and the business of the Company which the Company in good
faith believes will enable such Holders to make an informed decision (which at a
minimum will include (A) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the Company, the most
recent subsequently filed Quarterly Report on Form 10-Q and any Current Report
on Form 8-K of the Company filed subsequent to such Quarterly Report, other than
Current Reports describing Asset Sales otherwise described in the offering
materials relating to the Change of Control Offer (or corresponding successor
reports) (or in the event the Company is not required to prepare any of the
foregoing Forms, the comparable information required pursuant to Section 6.03(b)
hereof); provided that the Company may at its option incorporate by reference
any such filed reports in the notice, (B) a description of material developments
in the Company's business subsequent to the date of the latest of such reports,
and (C) if material, appropriate pro forma financial information).
(c) In the event of a Change of Control Offer, the Company will
only be required to accept Securities of each series in denominations of $1,000
or integral multiples thereof.
(d) The Company will not, and will not permit any Restricted
Subsidiary to, create or permit to exist or become effective any restriction
(other than any restriction set forth in any agreement, indenture, document or
instrument relating to any Existing Indebtedness or Refinancing Indebtedness
with respect thereto) that would materially impair the ability of the Company to
make a Change of Control Offer. Notwithstanding the foregoing, if a Change of
Control Offer is made, the Company will pay for Securities of each series
tendered for purchase in accordance with the terms of this Section 6.16.
(e) Not later than one Business Day prior to the Change of
Control Payment Date in connection with which the Change of Control Offer is
being made, the Company will (i) accept for payment Securities of each series or
portions thereof tendered pursuant to the Change of Control Offer, (ii) deposit
with the Paying Agent money sufficient, in immediately available funds, to pay
the purchase price of all Securities of each series or portions thereof so
accepted and (iii) deliver to the Paying Agent an Officers' Certificate
identifying the Securities of each series or portions thereof accepted for
payment by the Company. The Paying Agent will promptly after acceptance mail or
deliver to Holders of Securities of each series so accepted payment in an amount
equal to the Change of Control Price of the Securities of each series purchased
from each such Holder, and the Company will execute and, upon receipt of an
Officers' Certificate of the Company, the Trustee will promptly authenticate and
mail or deliver to such Holder a new Security of the same series, Maturity date,
interest rate and Issue Date equal in principal amount to any unpurchased
portion of the Security of such series surrendered. Any Securities of each
series not so accepted will be promptly mailed or delivered by the Paying Agent
at the Company's expense to the Holder thereof. The Company will publicly
announce the results of the Change of Control Offer on the Change of Control
Payment Date. For
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purposes of this Section 6.16(e), the Company will choose a Paying Agent which
will not be the Company or a Subsidiary thereof. Any excess cash held by the
Trustee after the expiration of the Change of Control Offer will be returned to
the Company.
(f) Any Change of Control Offer will be conducted by the
Company in compliance with applicable law, including, without limitation,
Section 14(e) of the Exchange Act and Rule 14e-1 thereunder.
SECTION 6.17 LIMITATIONS ON TRANSACTIONS WITH AFFILIATES
-------------------------------------------
(a) The Company will not, and will not permit any of its
Subsidiaries to, make any loan, advance, guaranty or capital contribution to, or
for the benefit of, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or for the benefit of, or purchase or lease any
property or assets from, or enter into or amend any contract, agreement or
understanding with, or for the benefit of, (i) any Affiliate of the Company or
any Affiliate of the Company's Subsidiaries or (ii) any Person (or any Affiliate
of such Person) holding 10 percent or more of the Common Equity of the Company
or any of its Subsidiaries (each an "Affiliate Transaction"), except on terms
that are no less favorable to the Company or the relevant Subsidiary, as the
case may be, than those that could have been obtained in a comparable
transaction on an arms' length basis from a Person that is not an Affiliate.
(b) The Company will not, and will not permit any of its
Subsidiaries to, enter into any Affiliate Transaction involving or having a
value of more than $10,000,000, unless in each case such Affiliate Transaction
has been approved by a majority of the disinterested members of the Company's
Board of Directors.
(c) The Company will not, and will not permit any of its
Subsidiaries to, enter into an Affiliate Transaction involving or having a value
of more than $20,000,000 unless the Company has delivered to the Trustee an
opinion of an Independent Financial Advisor to the effect that the transaction
is fair to the Company or the relevant Subsidiary, as the case may be, from a
financial point of view.
(d) Notwithstanding the foregoing, an Affiliate Transaction
will not include (i) any contract, agreement or understanding with, or for the
benefit of, or plan for the benefit of, employees or directors of the Company or
its Subsidiaries (in their capacity as such) that has been approved by the
Company's Board of Directors, (ii) Capital Stock issuances to members of the
Board of Directors, officers and employees, of the Company or its Subsidiaries
pursuant to plans approved by the stockholders of the Company, (iii) any
Restricted Payment otherwise permitted under Section 6.12 hereof, (iv) any
transaction between the Company or a Restricted Subsidiary and another
Restricted Subsidiary, or (v) any contract, agreement or understanding as in
effect on the Issue Date of Securities of any series or any amendment thereto or
any transaction contemplated thereby (including any amendment thereto) or (vi)
loans or advances by the Company or any Unrestricted Subsidiary which is an
aggregate amount at any one time outstanding do not exceed $25,000,000.
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SECTION 6.18 LIMITATIONS ON LIENS
The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, Incur, assume or suffer to exist any Liens, other than
Permitted Liens, on any of its or their assets, property, income or profits
therefrom unless contemporaneously therewith or prior thereto all payments due
hereunder and under the Securities of any series are secured on an equal and
ratable basis with the obligation or liability so secured until such time as
such obligation or liability is no longer secured by a Lien.
SECTION 6.19 LIMITATIONS ON RESTRICTIONS ON DISTRIBUTIONS FROM RESTRICTED
SUBSIDIARIES
The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, assume or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction (other than encumbrances or
restrictions imposed by law or by judicial or regulatory action or by provisions
in leases or other agreements that restrict the assignability thereof) on the
ability of any Restricted Subsidiary to (i) pay dividends or make any other
distributions on its Capital Stock or any other interest or participation in, or
measured by, its profits, owned by the Company or any of its other Restricted
Subsidiaries, or pay interest on or principal of any Indebtedness owed to the
Company or any of its other Restricted Subsidiaries, (ii) make loans or advances
to the Company or any of its other Restricted Subsidiaries, or (iii) transfer
any of its properties or assets to the Company or any of its other Restricted
Subsidiaries, except for encumbrances or restrictions existing under or by
reason of (a) applicable law, (b) covenants or restrictions contained in
Existing Indebtedness as in effect on the Issue Date of Securities of any
series, (c) any restrictions or encumbrances arising in connection with the
Existing Credit Facility; provided that any restrictions and encumbrances
relating to any extension or renewal of the Existing Credit Facility are not
more restrictive than those in the Existing Credit Facility being extended or
renewed, (d) any restrictions or encumbrances arising in connection with
Refinancing Indebtedness; provided that any restrictions and encumbrances of the
type described in this clause (d) that arise under such Refinancing Indebtedness
are not more restrictive than those under the agreement creating or evidencing
the Indebtedness being refunded or refinanced, (e) any agreement restricting the
sale or other disposition of property securing Indebtedness permitted by this
Indenture if such agreement does not expressly restrict the ability of a
Subsidiary of the Company to pay dividends or make loans or advances, and (f)
reasonable and customary borrowing base covenants set forth in credit agreements
evidencing Indebtedness otherwise permitted by this Indenture which covenants
restrict or limit the distribution of revenues or sale proceeds from real estate
or a real estate project based upon the amount of Indebtedness outstanding on
such real estate or real estate project and the value of some or all of the
remaining real estate or the project's remaining assets.
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SECTION 6.20 MAINTENANCE OF CONSOLIDATED TANGIBLE NET WORTH
----------------------------------------------
(a) In the event the Consolidated Tangible Net Worth of the
Company for any two consecutive fiscal quarters is less than $115,000,000,
within 30 days after the end of each such period the Company will so notify the
Trustee in writing by delivery of an Officers' Certificate and will offer to
purchase from all Holders (a "Net Worth Offer"), and will purchase from Holders
accepting such Net Worth Offer on the date fixed for the closing of such Net
Worth Offer (the "Net Worth Offer Date"), ten percent of the original
Outstanding principal amount of the Securities of each series (the "Net Worth
Amount") at an offer price (the "Net Worth Offer Price") in cash in an amount
equal to 100 percent of the principal amount thereof plus accrued and unpaid
interest, if any, to the Net Worth Offer Date, in accordance with the procedures
set forth in this Section 6.20. To the extent that the aggregate amount of
Securities of each series tendered pursuant to a Net Worth Offer is less than
the Net Worth Amount relating thereto, then the Company may use the excess of
the Net Worth Amount over the amount of Securities of each series tendered, or a
portion thereof, for general corporate purposes.
(b) In the event the Consolidated Tangible Net Worth of the
Company for any two consecutive fiscal quarters is less than $115,000,000,
within 30 days after the end of such period, the Company (with written notice to
the Trustee) or the Trustee at the Company's request (and at the expense of the
Company) will send or cause to be sent by first-class mail, postage prepaid, to
all Holders on the date of the end of the second such consecutive fiscal
quarter, at their respective addresses appearing in the Security Register, a
notice, as prepared by the Company advising the Holders of such series, of such
occurrence and of each Holders' rights arising as a result thereof. Such notice
will contain all instructions and materials necessary to enable Holders to
tender their Securities of each series to the Company. Such notice, which will
govern the terms of the Net Worth Offer, will state:
(i) that the Net Worth Offer is being made pursuant
to Section 6.20(a) hereof and the length of time such Net Worth Offer will
remain open;
(ii) that the Holder has the right to require the
Company to repurchase such Holder's Securities of such series at the Net Worth
Offer Price;
(iii) that any Security of such series not tendered
will continue to accrue interest;
(iv) that any Security of such series accepted for
payment pursuant to the Net Worth Offer will cease to accrue interest on the Net
Worth Offer Date;
(v) that the Net Worth Offer Date will be no earlier
than 45 days nor later than 60 days from the date such notice is mailed;
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(vi) that Holders electing to have a Security of such
series purchased pursuant to any Net Worth Offer will be required to surrender
the Security of such series, with the appropriate form on the Security of such
series completed, to the Company, a depositary, if appointed by the Company, or
a Paying Agent at the address specified in the notice prior to termination of
the Net Worth Offer;
(vii) that Holders will be entitled to withdraw their
election if the Company, depositary or Paying Agent, as the case may be,
receives, not later than the expiration of the Net Worth Offer, or such longer
period as may be required by law, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Security the Holder delivered for purchase and a statement that such Holder is
withdrawing its election to have the Security of such series purchased;
(viii) that Holders whose Securities of such series
are purchased only in part will be issued Securities of the same series,
Maturity date, interest rate and Issue Date equal in principal amount to the
unpurchased portion of the Securities of such series surrendered; and
(ix) information concerning the period and details of
the events requiring the Net Worth Offer and the business of the Company which
the Company in good faith believes will enable such Holders to make an informed
decision (which at a minimum will include (A) the most recently filed Annual
Report on Form 10-K (including audited consolidated financial statements) of the
Company, the most recent subsequently filed Quarterly Report on Form 10-Q and
any Current Report on Form 8-K of the Company filed subsequent to such Quarterly
Report, other than Current Reports describing Asset Sales otherwise described in
the offering materials relating to the Net Worth Offer (or corresponding
successor reports) (or in the event the Company is not required to prepare any
of the foregoing Forms, the comparable information required pursuant to Section
6.03(b) hereof); provided that the Company may at its option incorporate by
reference any such filed reports in the notice, (B) a description of material
developments in the Company's business subsequent to the date of the latest of
such reports, and (C) if material, appropriate pro forma financial information).
(c) In the event the aggregate principal amount of Securities
of such series surrendered by Holders exceeds the Net Worth Amount, the Company
will select the Securities of such series to be purchased on a pro rata basis
from all Securities of such series so surrendered, with such adjustments as may
be deemed appropriate by the Company so that only Securities of any series in
denominations of $1,000, or integral multiples thereof, will be purchased. To
the extent that the Net Worth Amount remaining is less than $1,000, the Company
may use such Net Worth Amount for general corporate purposes. Holders whose
Securities of such series are purchased only in part will be issued new
Securities of the same series, Maturity date, interest rate and Issue Date equal
in principal amount to the unpurchased portion of the Securities of such series
surrendered.
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(d) The Company will not, and will not permit any Restricted
Subsidiary to, create or permit to exist or become effective any restriction
(other than any restriction set forth in any agreement, indenture, document or
instrument relating to any Existing Indebtedness or Refinancing Indebtedness
with respect thereto) that would materially impair the ability of the Company to
make a Net Worth Offer. Notwithstanding the foregoing, if a Net Worth Offer is
made, the Company will pay for Securities of any series tendered for purchase in
accordance with the terms of this Section 6.20.
(e) Not later than one Business Day prior to the Net Worth
Offer Date in connection with which the Net Worth Offer is being made, the
Company will (i) accept for payment Securities of each series or portions
thereof tendered pursuant to the Net Worth Offer (on a pro rata basis if
required pursuant to Section 6.20(c) above), (ii) deposit with the Paying Agent
money sufficient, in immediately available funds, to pay the purchase price of
all Securities of each series or portions thereof so accepted and (iii) deliver
to the Paying Agent with an Officers' Certificate identifying the Securities of
each series or portions thereof accepted for payment by the Company. The Paying
Agent will promptly after acceptance mail or deliver to Holders of Securities of
such series so accepted payment in an amount equal to the Net Worth Offer Price
of the Securities of such series purchased from each such Holder, and the
Company will execute and the Trustee will promptly authenticate and mail or
deliver to such Holder a new Security of the same series, Maturity date,
interest rate and Issue Date equal in principal amount to any unpurchased
portion of the Security of such series surrendered. Any Securities of such
series not so accepted will be promptly mailed or delivered by the Paying Agent
at the Company's expense to the Holder thereof. The Company will publicly
announce the results of the Net Worth Offer on the Net Worth Offer Date. For
purposes of this Section 6.20(e), the Company will choose a Paying Agent which
will not be the Company or a Subsidiary thereof. Any excess cash held by the
Trustee after the expiration of the Net Worth Offer will be returned to the
Company.
(f) Any Net Worth Offer will be conducted by the Company in
compliance with applicable law, including, without limitation, Section 14(e) of
the Exchange Act and Rule 14e-1 thereunder, if applicable.
ARTICLE 7
SUCCESSORS
SECTION 7.01 LIMITATIONS ON MERGERS AND CONSOLIDATIONS
-----------------------------------------
(a) The Company will not consolidate or merge with or into, or
sell, lease, convey or otherwise dispose of all or substantially all of its
assets (including, without limitation, by way of liquidation or dissolution), or
assign any of its obligations hereunder or under the Securities of any series
(as an entirety or substantially an entirety in one transaction or series of
related transactions), to any Person unless: (i) the Person formed by or
surviving such
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consolidation or merger (if other than the Company), or to which sale, lease,
conveyance or other disposition or assignment will be made (collectively, the
"Successor"), is a solvent corporation or other legal entity organized and
existing under the laws of the United States or any state thereof or the
District of Columbia, and the Successor assumes by supplemental indenture in a
form reasonably satisfactory to the Trustee all of the obligations of the
Company under the Securities of any series and this Indenture, (ii) immediately
after giving effect to such transaction, no Default or Event of Default has
occurred and is continuing, (iii) immediately after giving effect to such
transaction and the use of any net proceeds therefrom on a pro forma basis, the
Consolidated Tangible Net Worth of the Company or the Successor, as the case may
be, would be at least equal to the Consolidated Tangible Net Worth of the
Company immediately prior to such transaction and (iv) the Consolidated Fixed
Charge Coverage Ratio contained in Section 6.13(a)(i) hereof of the Company or
the Successor, as the case may be, immediately after giving effect to such
transaction, would be such that the Company or the Successor, as the case may
be, would be entitled to Incur at least $1 of additional Indebtedness under such
Consolidated Fixed Charge Coverage Ratio test.
(b) The Company will 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 comply with this Indenture.
SECTION 7.02 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company or any assignment of its obligations under this Indenture or the
Securities of any series in accordance with Section 7.01 hereof, upon assumption
by the successor corporation, by supplemental indenture, executed and delivered
to the Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and interest on all of the Securities of any series
and the due and punctual performance and observance of all the covenants and
conditions of this Indenture to be performed or observed by the Company, the
Successor formed by such consolidation or into or with which the Company is
merged or to which such sale, lease, conveyance or other disposition or
assignment is made will succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such Successor has been named as the Company herein and such Successor may
cause to be signed and may issue in its own name or in the name of the Company,
any or all Securities of any series issuable hereunder and the predecessor
Company, in the case of a sale, lease, conveyance or other disposition or
assignment, will be released from all obligations under this Indenture and the
Securities of any series.
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ARTICLE 8
DEFAULTS AND REMEDIES
SECTION 8.01 EVENTS OF DEFAULT
(a) "Event of Default", wherever used herein with respect to
Securities of any series, means any of the following events (whatever the reason
for such Event of Default and whether it will be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(i) the failure by the Company to pay interest
on any Security of that series when the same becomes due and payable
and the continuance of any such failure for a period of 30 days;
(ii) the failure by the Company to pay the
principal of any Security of that series when the same becomes due and
payable at Maturity, upon acceleration or otherwise (including the
failure to make payment pursuant to a Change of Control Offer, an
Excess Proceeds Offer or a Net Worth Offer);
(iii) the failure by the Company to make any
sinking fund payment when the same becomes due and payable by the terms
of a Security of that series and Article 5 hereof;
(iv) the failure by the Company to comply with
any of its agreements or covenants in, or provisions of, the Security
of that series or this Indenture (other than an agreement or covenant a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has expressly been included in
this Indenture solely for the benefit of a series of Securities other
than that series) and such failure continues for the period and after
the notice specified below;
(v) the acceleration of any Indebtedness (other
than Non-Recourse Indebtedness) of the Company or any of its
Subsidiaries that has an outstanding principal amount of $5,000,000 or
more in the aggregate; provided that, in the event any such
acceleration is withdrawn or otherwise rescinded within a period of
five days after such acceleration by the holders of such Indebtedness,
any Event of Default under this Section 8.01(a)(v) will be deemed to be
cured and any acceleration hereunder will be deemed withdrawn or
rescinded;
(vi) the failure by the Company or any of its
Subsidiaries to make any principal or interest payment in respect of
Indebtedness (other than Non-Recourse
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Indebtedness) of the Company or any of its Subsidiaries with an
outstanding aggregate amount of $5,000,000 or more within five days of
such principal or interest payment becoming due and payable (after
giving effect to any applicable grace period set forth in the documents
governing such Indebtedness);
(vii) a final judgment or judgments that exceed
$5,000,000 or more in the aggregate, for the payment of money, having
been entered by a court or courts of competent jurisdiction against the
Company or any of its Subsidiaries and such judgment or judgments is
not satisfied, stayed, annulled or rescinded within 60 days of being
entered;
(viii) the Company or any Material 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
(D) makes a general assignment for the
benefit of its creditors;
(ix) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Company
or any Material Subsidiary as debtor in an
involuntary case,
(B) appoints a Custodian of the Company
or any Material Subsidiary or a Custodian for all or
substantially all of the property of the Company or
any Material Subsidiary, or
(C) orders the liquidation of the
Company or any Material Subsidiary,
and the order or decree remains unstayed and in effect
for 60 days; or
(x) any other Event of Default provided with
respect to Securities of that series.
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(b) The Trustee will not be deemed to know of a Default
unless a Trust Officer has actual knowledge of such Default or receives written
notice of such Default with specific reference to such Default.
(c) A Default under Section 8.01(a)(iv) hereof is not an
Event of Default until the Trustee notifies the Company, or the Holders of at
least 25 percent in aggregate principal amount of the Outstanding Securities of
all series affected thereby notify the Company and the Trustee, of the Default
and the Company 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.
SECTION 8.02 ACCELERATION
(a) If an Event of Default with respect to Securities of
any series at the time Outstanding (other than an Event of Default with respect
to the Company specified in clause (viii) or (ix) of Section 8.01(a) hereof)
occurs and is continuing, the Trustee (after receiving indemnities from the
Holders to its satisfaction) by notice to the Company, or the Holders of at
least 25 percent in aggregate principal amount of the Outstanding Securities of
such series by notice to the Company and the Trustee, may declare all
Outstanding Securities of such series to be due and payable immediately. Upon
such declaration, the amounts due and payable on the Securities of such series,
as determined in Section 8.02(b) hereof, will be due and payable immediately. If
an Event of Default specified in clause (viii) or (ix) of Section 8.01(a) hereof
occurs, such an amount will ipso facto become and be immediately due and payable
without any declaration, notice or other act on the part of the Trustee and the
Company or any Holder. The Holders of a majority in aggregate principal amount
of the Outstanding Securities of any series by written notice to the Trustee and
the Company may waive such Event of Default, rescind an acceleration and its
consequences (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 existing Events of Default have been cured or
waived.
(b) In the event that the maturity of the Securities of
any series is accelerated pursuant to Section 8.02(a) hereof, 100 percent of the
principal amount of the Securities of such series (or in the case of a default
under Section 8.01(a)(ii) or (iv) hereof resulting from a breach of the covenant
set forth in Section 6.16 hereof, 101 percent of the principal amount of the
Securities of such series) will become due and payable plus accrued interest, if
any, to the date of payment.
SECTION 8.03 OTHER REMEDIES
(a) If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or in equity to
collect the payment of principal or
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interest on the Securities of any series or to enforce the performance of any
provision of the Securities of any series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does
not possess any of the Securities of any series 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 will not impair
the right or remedy or constitute a waiver of or acquiescence in the Event of
Default. All remedies are cumulative to the extent permitted by law.
SECTION 8.04 WAIVER OF PAST DEFAULTS AND COMPLIANCE WITH INDENTURE
PROVISIONS
Subject to Sections 8.07 and 13.02 hereof, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of any
series by notice to the Trustee may waive an existing Default or Event of
Default and its consequences (including waivers obtained in connection with a
tender offer or exchange offer for Securities), except a continuing Default or
Event of Default in the payment of the principal of or interest on any Security
of such series. Upon any such waiver, such Default will cease to exist, and any
Event of Default arising therefrom will be deemed to have been cured for every
purpose of this Indenture, but no such waiver will extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
SECTION 8.05 CONTROL BY MAJORITY
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee (after
providing indemnities to the Trustee's satisfaction) or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Securities of such series,
or that may subject the Trustee to legal liability; provided that the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
SECTION 8.06 LIMITATIONS ON SUITS
(a) A Holder may pursue a remedy with respect to this
Indenture or the Securities of any series only if:
(i) the Holder gives to the Trustee written
notice of a continuing Event of Default with respect to the Securities
of that series;
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(ii) the Holder(s) of at least 25 percent in
aggregate principal amount of all of the Outstanding Securities of that
series make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee
indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense;
(iv) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of indemnity;
and
(v) during such 60-day period the Holders of a
majority in aggregate principal amount of the Outstanding Securities of
such series do not give the Trustee a direction inconsistent with the
request.
(b) A Holder of a Security of any series may not use this
Indenture to prejudice the rights of another Holder or to obtain a preference or
priority over another Holder.
SECTION 8.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security of any series to receive payment of principal
and interest on the Security of such series, on or after the respective due
dates expressed in the Security of such series, or, subject to Section 8.06
hereof, to bring suit for the enforcement of any such payment on or after such
respective dates, will not be impaired or affected without the consent of the
Holder.
SECTION 8.08 COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 8.01(a)(i) or
8.01(a)(ii) hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against the
Company for the amount of principal and interest remaining unpaid on the
Securities of such series, determined in accordance with Section 8.02(b) hereof,
and such further amount as will be sufficient to cover the costs and expenses of
collection, including, without limitation, the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 8.09 TRUSTEE MAY FILE PROOFS OF CLAIM
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including, without limitation, any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, it
agents and counsel) and the Holders allowed in any judicial proceedings relative
to the Company, its creditors or property and will be entitled and
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empowered to collect, receive and distribute any money or other property payable
or deliverable on any such claims and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee consents to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 9.07 hereof. Nothing contained herein will be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 8.10 PRIORITIES
(a) In the event the Trustee collects any money pursuant
to this Article 8, it will pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 9.07
hereof;
SECOND: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
THIRD: to the Company or such other Person legally entitled
thereto.
(b) The Trustee may fix a record date and payment date
for any payment to Holders pursuant to this Section 8.10.
SECTION 8.11 UNDERTAKING FOR COSTS
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant (other than the Trustee) in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 8.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 8.07 hereof, or a suit by
Holders of more than ten percent in aggregate principal amount of all of the
Outstanding Securities of any series.
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SECTION 8.12 RESTORATION OF RIGHTS AND REMEDIES
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders will, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders will continue
as though no such proceeding had been instituted.
ARTICLE 9
TRUSTEE
SECTION 9.01 DUTIES OF TRUSTEE
(a) If an Event of Default has occurred and is continuing, the
Trustee will exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in such exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that
are specifically set forth in this Indenture and no others,
and no implied covenants or obligations will be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, in the case of any such certificates or opinions
which are specifically required to be furnished to the Trustee
by any of the provisions hereof, the Trustee will examine the
certificates and opinions to determine whether or not, on
their face, they appear to conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liabilities for its
own gross negligent action, its own gross negligent failure to act, or its own
willful misconduct, except that:
(i) this Section 9.01(c) does not limit the
effect of Section 9.01(b) hereof;
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(ii) the Trustee will not be liable for any error
of judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was grossly negligent in ascertaining the pertinent
facts; and
(iii) the Trustee will 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 9.05 hereof or
when exercising any other trust or power conferred upon the Trustee
under this Indenture.
Whether or not therein expressly so provided, every provision of this Indenture
that in any way relates to the Trustee is subject to clauses (i), (ii) and (iii)
of this Section 9.01(c).
(d) No provision of this Indenture will require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers if it has reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) The Trustee will not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law. Subject to Sections 9.03 and 9.07
hereof, all money received by the Trustee will, until applied as herein
provided, be held in trust for the payment of principal and interest on the
Securities.
(f) The Trustee shall not be required to give any bond or
surety in respect of the exercise of its powers and performance of its duties
hereunder.
SECTION 9.02 RIGHTS OF TRUSTEE
(a) Subject to Section 9.01 hereof:
(i) the Trustee may rely and will be protected
in acting or refraining from acting upon any document believed by it to
be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the
document but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee determines to make such further inquiry or
investigation, it will be entitled to examine the books, records, and
premises of the Company, personally or by agent or attorney;
(ii) before the Trustee acts or refrains from
acting, it may require an Officers' Certificate. The Trustee will not
be liable for any action it takes or omits to take
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in good faith in reliance on such Officers' Certificate. The Trustee
may consult with counsel satisfactory to it and the written advice of
such counsel or any Opinion of Counsel will be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(iii) the Trustee may act through agents and will
not be responsible for the misconduct or negligence of any agent
appointed with due care; provided, however, that the Trustee will in
any event be liable for the misappropriation of funds deposited with it
or in an account within its dominion and control;
(iv) the Trustee will not be liable for any
action it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers conferred upon it by this
Indenture; and
(v) unless otherwise specifically provided in
this Indenture, any demand, request, direction or notice from the
Company will be sufficient if signed by an Officer of the Company.
(b) The Trustee will be under no obligation to
exercise and may refuse to exercise any of the rights or powers vested in it by
this Indenture at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
SECTION 9.03 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 Company or
any of its Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. However, the Trustee is subject to
Sections 9.10 and 9.11 hereof.
SECTION 9.04 TRUSTEE'S DISCLAIMER
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities of any series, it will not be
accountable for any actions taken by the Company or any action taken by the
Trustee hereunder at the direction of the Company or in reliance upon an Opinion
of Counsel, and it will not be responsible for any statement or recital herein
or any statement in the Securities of any series other than its certificate of
authentication. The immunities and exemptions from liability of the Trustee
hereunder shall extend to its directors, officers, employees and agents.
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SECTION 9.05 NOTICE OF DEFAULTS
If a Default or Event of Default with respect to any series of
Securities occurs and is continuing and if it is known to the Trustee, the
Trustee will mail to Holders of such Securities a notice of the Default or Event
of Default within 90 days after it occurs. However, except in the case of a
Default or Event of Default in payment of principal or interest on any Security
of such series or a breach of the Change of Control covenant, the Trustee may
withhold such notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of such
Holders.
SECTION 9.06 REPORTS BY TRUSTEE TO HOLDERS
(a) Within 60 days after each ______, beginning with
____________, the Trustee will mail to Holders a brief report dated as of such
reporting date that complies with TIA Section 313(a); provided, however, if no
event described in TIA Section 313(a) has occurred within such calendar year, no
report need be transmitted. The Trustee also will comply with TIA Sections
313(b) and 313(c).
(b) A copy of each report at the time of its mailing to
Holders will be filed with the SEC and each stock exchange, if any, on which the
Securities of any series are listed. The Company will notify the Trustee when
the Securities of any series are listed on any stock exchange.
SECTION 9.07 COMPENSATION AND INDEMNITY
(a) The Company agrees:
(i) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation will not be limited by any
provision of law in regard to the compensation of a trustee of
an express trust);
(ii) to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any
provision of this Indenture (including, without limitation,
the reasonable compensation and the expenses, advances and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
gross negligence or bad faith; and
(iii) to indemnify the Trustee and its agents for,
and to hold them harmless against, any loss, liability or
expense incurred without gross negligence or bad faith on
their part, arising out of or in connection with the
acceptance or
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administration of this trust, including the costs and expenses
of defending themselves against any claim or liability in
connection with the exercise or performance of any of their
powers or duties hereunder.
(b) To secure the Company's payment obligations in this
Section 9.07, the Trustee will have a Lien prior to the Securities on all money
or property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Securities.
(c) When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 8.01(a)(viii) or (a)(ix) occurs,
the expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 9.08 REPLACEMENT OF TRUSTEE
(a) A resignation or removal of the Trustee and
appointment of a successor Trustee will become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section 9.08.
(b) The Trustee may resign and be discharged from the
trust hereby created by so notifying the Company in writing. The Holders of a
majority in principal amount of the Outstanding Securities of any series may
remove the Trustee by so notifying the Trustee and the Company. The Company may
remove the Trustee if:
(i) the Trustee fails to comply with Section
9.10 hereof;
(ii) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to
the Trustee under any Bankruptcy Law;
(iii) a Custodian or public officer takes charge
of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company will promptly
appoint a successor Trustee.
(d) If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least ten percent in principal amount of the
Outstanding Securities of any series may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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(e) If the Trustee fails to comply with Section 9.10
hereof, any Holder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance
of its appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee will mail a notice of its succession
to the Holders. The retiring Trustee will promptly transfer all property held by
it as Trustee to the successor Trustee, subject to the Lien provided for in
Section 9.07 hereof. Notwithstanding replacement of the Trustee pursuant to this
Section 9.08, the Company's obligations under Section 9.07 hereof will continue
for the benefit of the retiring Trustee.
SECTION 9.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
(a) Subject to Section 9.10 hereof, if the Trustee
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation
without any further act will be the successor Trustee; provided that in the case
of a transfer of all or substantially all of its corporate trust business to
another corporation, the transferee corporation expressly assumes all of the
Trustee's liabilities hereunder.
(b) In case any Securities of any series have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated, with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 9.10 ELIGIBILITY; DISQUALIFICATION
(a) There will at all times be a Trustee hereunder which
will (i) be a corporation organized and doing business under the laws of the
United States, any state thereof or the District of Columbia, authorized under
such laws to exercise corporate trustee power, (ii) be subject to supervision or
examination by federal or state (or the District of Columbia) authority and
(iii) have a combined capital and surplus of at least $150 million as set forth
in its most recent published annual report of condition.
(b) This Indenture will always have a Trustee who
satisfies the requirements of TIA Sections 310(a)(1) and 310(a)(2). The Trustee
is subject to TIA Section 310(b). If at any time the Trustee ceases to be
eligible in accordance with the provisions of this Section 9.10, it will resign
immediately in the manner and with the effect specified in Section 9.08 hereof.
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SECTION 9.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed will be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 10
HOLDERS' LISTS
SECTION 10.01 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS
The Company will furnish or cause to be furnished to the
Trustee:
(i) semi-annually, not more than 15 days before
each Interest Payment Date, a list, in such form as the
Trustee may reasonably require, of the names and addresses of
the Holders of such series of Securities as of the Regular
Record Date of such Interest Payment Date; and
(ii) at such other times as the Trustee may
request in writing, within 30 days after receipt by the
Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time
such list is furnished;
provided, however, that if and so long as the Trustee will be the Registrar, no
such list need be furnished.
SECTION 10.02 PRESERVATION OF INFORMATION
The Trustee will preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each series of
Securities contained in the most recent list furnished to the Trustee as
provided in Section 10.01 hereof and the names and addresses of such Holders
received by the Trustee in its capacity as Registrar or Paying Agent (if so
acting). The Trustee may destroy any list furnished to it as provided in Section
10.01 hereof upon receipt of a new list so furnished.
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ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 11.01 COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE
The Company may elect, at its option by Board Resolution at
any time, to have either Section 11.02 or 11.03 hereof applied to the
Outstanding Securities of any series designated pursuant to Section 3.01 hereof
as being defeasible pursuant to this Article 11 (hereinafter called a
"Defeasible Series"), upon compliance with the conditions set forth below in
this Article 11.
SECTION 11.02 DEFEASANCE AND DISCHARGE
Upon the Company's exercise of the option provided in Section
11.01 hereof to have this Section 11.02 applied to the Outstanding Securities of
any Defeasible Series, the Company shall be deemed to have been discharged from
its obligations with respect to the Outstanding Securities of such series as
provided in this Section 11.02 on and after the date the conditions set forth in
Section 11.04 hereof are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the Outstanding Securities of
such series, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 11.05 hereof and the other Sections of this Indenture
referred to in (i) and (ii) below, and to have satisfied all its other
obligations under the Securities of such series and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of Outstanding Securities of such series to
receive solely from the trust fund described in Section 11.04 hereof and as more
fully set forth in such Section, payments in respect of the principal of and
interest on such Securities of such series when payments are due, (ii) the
Company's obligations with respect to the Securities of such series under
Sections 3.04, 3.05, 3.06, 6.02 and 6.04 hereof, (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (iv) this Article 11.
Subject to compliance with this Article 11, the Company may exercise its option
provided in Section 11.01 hereof to have this Section 11.02 applied to the
Outstanding Securities of any Defeasible Series notwithstanding the prior
exercise of its option provided in Section 11.01 hereof to have Section 11.03
hereof applied to such Outstanding Securities.
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SECTION 11.03 COVENANT DEFEASANCE
Upon the Company's exercise of the option provided in Section
11.01 hereof to have this Section 11.03 applied to the Outstanding Securities,
(i) the Company shall be released from its obligations under Sections 6.03 and
6.06 through 6.20, inclusive, Article 7, and any other covenants specified in or
pursuant to this Indenture and (ii) the occurrence of any event specified in
Sections 8.01(a)(iv) (with respect to any of Sections 6.03 and 6.06 through 6.20
inclusive, and any other covenants specified in or pursuant to this Indenture)
and 8.01(a)(x) shall be deemed not to be or result in an Event of Default, in
each case with respect to the Outstanding Securities of such series as provided
in this Section 11.03 on and after the date the conditions set forth in Section
11.04 hereof are satisfied (hereinafter called "Covenant Defeasance"), and such
Securities shall thereafter be deemed not to be "Outstanding" for the purposes
of any direction, waiver, consent, declaration or act of Holders (and the
consequences thereof) in connection with such covenants, but shall continue to
be "Outstanding" for all other purposes hereunder. For this purpose, such
Covenant Defeasance means that, with respect to such Outstanding Securities, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly by reason of any reference elsewhere herein to any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or Event of Default under Section
8.01(a)(iv) or 8.01(a)(x), or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and the Securities of such
series shall be unaffected thereby.
SECTION 11.04 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE
The following shall be the conditions to application of either
Section 11.02 or 11.03 hereof to the Outstanding Securities of any Defeasible
Series:
(i) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee that
satisfies the requirements contemplated by Section 9.10 hereof and
agrees to comply with the provisions of this Article 11 applicable to
it) as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of Outstanding Securities of such
series, (A) money in an amount, or (B) U.S. Government Obligations that
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, (1) the principal of and
interest on the Securities of such series on the respective Stated
Maturities (or redemption date, if applicable) of such
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principal or installment of interest and (2) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding
Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Securities;
provided that the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such U.S. Government Obligations to
said payments with respect to such Securities. Before such a deposit,
the Company may give to the Trustee, in accordance with Section 4.02
hereof, a notice of its election to redeem all or any portion of such
Outstanding Securities at a future date in accordance with the terms of
the Securities of such series and Article 4 hereof, which notice shall
be irrevocable. Such irrevocable redemption notice, if given, shall be
given effect in applying the foregoing.
(ii) In the case of an election under Section 11.02
hereof, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (B) since
the date first set forth hereinabove, there has been a change in the
applicable Federal income tax law, in either case, to the effect that,
and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain
or loss for Federal income tax purposes as a result of such Defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.
(iii) In the case of an election under Section 11.03
hereof, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding Securities of
such series will not recognize income, gain or loss for Federal income
tax purposes as result of such Covenant Defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(iv) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such series,
if then listed on any securities exchange, will not be delisted as a
result of such Defeasance or Covenant Defeasance.
(v) No Default or Event of Default shall have occurred
and be continuing at the time of such deposit.
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(vi) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the meaning of
the TIA (assuming all Securities are in default within the meaning of
the TIA).
(vii) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by
which it is bound.
(viii) Notwithstanding any other provisions of this Section,
such Defeasance or Covenant Defeasance shall be effected in compliance
with any additional or substitute terms, conditions or limitations in
connection therewith pursuant to Section 3.01 hereof.
(ix) The Company shall have delivered to the Trustee an
Officers' Certificate, stating that all conditions precedent with
respect to such Defeasance or Covenant Defeasance have been complied
with.
Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be qualified under such Act or exempt from regulation thereunder.
SECTION 11.05 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO
BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS
Subject to the provisions of Section 6.04(e) hereof, all money
and U.S. Government Obligations (or other property as may be provided pursuant
to Section 3.01 hereof) (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section 11.05
and Section 11.06 hereof, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 11.04 hereof in respect of
the Outstanding Securities of any Defeasible Series shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Outstanding
Securities of such series and this Indenture, to the payment, either directly or
through any such Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities of all
sums due and to become due thereon in respect of principal and interest, but
such money so held in trust need not be segregated from other funds except to
the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 11.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge that by law is for the account of the Holders of Outstanding Securities.
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Anything in this Article 11 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company any money or U.S. Government
Obligations (or other property and any proceeds therefrom) held by it with
respect to Outstanding Securities of any Defeasible Series that are in excess of
the amount thereof that was used to pay the Securities of such series upon
Maturity.
SECTION 11.06 REINSTATEMENT
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article 11 with respect to the Securities of any
series by reason of any notification, order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to this Article 11 with respect to Securities of such
series until such time as the Trustee or Paying Agent is permitted to apply all
money held in trust pursuant to Section 11.05 hereof with respect to Securities
of such series in accordance with this Article 11; provided, however, that if
the Company makes any payment of principal of or interest on any Security of
such series following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of Securities of such series to receive
such payment from the money so held in trust.
ARTICLE 12
SATISFACTION AND DISCHARGE
SECTION 12.01 SATISFACTION AND DISCHARGE OF INDENTURE
This Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when
(i) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities of such
series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06 hereof,
and (ii) Securities of such series for whose payment money has
theretofore been deposited in trust with the Trustee or any
Paying Agent or segregated and held in trust by the Company
and thereafter repaid to the Company, as provided in Section
6.04 hereof) have been delivered to the Trustee for
cancellation; or
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(B) all Securities of such series and, in the
case of (1) or (2) below, not theretofore delivered to the
Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at
their Stated Maturity within one year, or
(3) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (1), (2) or (3) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in
cash sufficient to pay and discharge the entire Indebtedness
on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and interest to the date of
such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or redemption date, as
the case may be;
(ii) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 9.07
hereof and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (i) of this Section 12.01, the obligations of the
Trustee under Sections 12.02 and 6.04(e) hereof shall survive.
SECTION 12.02 APPLICATION OF TRUST MONEY
Subject to the provisions of Section 6.04(e) hereof, all money
deposited with the Trustee pursuant to Section 12.01 hereof shall be held in
trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by law.
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ARTICLE 13
SUPPLEMENTAL INDENTURES
SECTION 13.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
(a) The Company and the Trustee may amend this Indenture
or the Securities or waive any provision hereof without the consent of any
Holder:
(i) to cure any ambiguity, defect or
inconsistency;
(ii) to comply with Section 7.01 hereof;
(iii) to provide for uncertificated Securities in
addition to certificated Securities;
(iv) to make any change that does not adversely
affect the legal rights hereunder of any Holder of a Security
of any series;
(v) to add to the covenants of the Company for
the benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less than
all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company;
(vi) to add any additional Events of Default for
the benefit of the Holders of all or any series of Securities
(and if such Events of Default are to be for the benefit of
less then all series of Securities, stating that such Events
of Default are being included solely for the benefit of such
series);
(vii) to change or eliminate any of the provisions
of this Indenture in respect of one or more series of
Securities; provided that any such addition, change or
elimination shall become effective only when there is no
Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to
the benefit of such provision;
(viii) to establish the form or terms of Securities
of any series as permitted by Sections 2.01 and 3.01 hereof;
(ix) to secure the Securities pursuant to the
requirements of Section 6.18 hereof;
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(x) to evidence and provide for the acceptance
of appointment hereunder of a successor Trustee with respect
to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 9.08 hereof;
(xi) to supplement any of the provisions of the
Indenture to such extent as shall be necessary to implement
the provisions of Article 11 hereof or discharge of any series
of Securities pursuant to Sections 12.01, 12.02 and 12.03
hereof; provided that any such action shall not adversely
affect the interests of the Holders of Securities of such
series or any other series in any material respect; or
(xii) to comply with the qualification of this
Indenture under the TIA.
(b) Upon the request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental indenture,
and upon receipt by the Trustee of the documents described in Section 13.06
hereof, the Trustee will join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms of this Indenture
and make any further appropriate agreements and stipulations that may be
contained therein. After an amendment or waiver under this Section 13.01 becomes
effective, the Company will mail to the Holders of each Security affected
thereby a notice describing the amendment or waiver. Any failure of the Company
to mail such notice, will not, however, affect the validity of any such
supplemental indenture.
SECTION 13.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
(a) Except as provided below in this Section 13.02, the
Company and the Trustee may amend this Indenture or the Securities with the
written consent (including consents obtained in connection with a tender offer
or exchange offer for Securities) of the Holders of at least a majority in
principal amount of the Outstanding Securities of each series affected by such
amendment.
(b) Upon the request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of the Holders
as aforesaid, and upon receipt by the Trustee of the documents described in
Section 13.06 hereof, the Trustee will join with the Company in the execution of
such supplemental indenture.
(c) It will not be necessary for the consent of the
Holders under this Section 13.02 to approve the particular form of any proposed
amendment or waiver, but it will be sufficient if such consent approves the
substance thereof.
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(d) The Holders of a majority in principal amount of the
Outstanding Securities of each series affected may waive compliance in a
particular instance by the Company with any provision of this Indenture
(including waivers obtained in connection with a tender offer or exchange offer
for Securities). However, without the consent of each Holder of an Outstanding
Security affected thereby, an amendment or waiver under this Section 13.02 may
not:
(i) change the Stated Maturity of the principal
of, or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the redemption
thereof, or change the Place of Payment where any Security or
interest thereon is payable, or change the coin or currency in
which any Security or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the
case of redemption or repayment at the option of the Holder,
on or after the redemption date or repayment date), or
(ii) reduce the percentage in principal amount of
the Outstanding Securities of any series, the consent of whose
Holders is required for any such amendment, or the consent of
whose Holders is required for any waiver of compliance with
certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this
Indenture, or
(iii) modify any of the provisions of this Section
or Section 8.07, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby, or
(iv) modify the ranking or priority of the
Securities in a manner adverse to the Holders.
(e) A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series.
(f) The right of any Holder to participate in any consent
required or sought pursuant to any provision of this Indenture (and the
obligation of the Company to obtain any such consent otherwise required from
such Holder) may be subject to the requirement that such Holder has been the
Holder of record of any Securities of any series with respect to which such
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consent is required or sought as of a date identified by the Trustee in a notice
furnished to Holders in accordance with the terms of this Indenture.
SECTION 13.03 COMPLIANCE WITH TIA
Every amendment to this Indenture or the Securities will
comply in form and substance with the TIA as then in effect.
SECTION 13.04 REVOCATION AND EFFECT OF CONSENTS
(a) Until an amendment (which includes any supplement) or
waiver becomes effective, a consent to it by a Holder of a Security of any
series is a continuing consent by 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.
However, any such Holder or subsequent Holder may revoke the consent as to such
Holder's Security or portion of a Security if the Trustee receives written
notice of revocation before the date the amendment or waiver becomes effective.
An amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
(b) The Company may, but will not be obligated to, fix a
record date for the purpose of determining the Holders entitled to consent to
any amendment or waiver. If the Company elects to fix a record date for such
purpose, the record date will be fixed at (i) the later of 30 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee prior to such solicitation pursuant to Section
10.02 hereof or (ii) such other date as the Company will designate. If a record
date is fixed, then notwithstanding the provisions of Section 13.04(a) hereof,
those Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, will be entitled to consent to such amendment
or waiver or to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No consent will be valid or
effective for more than 90 days unless consents from Holders of the principal
amount of Securities required hereunder for such amendment or waiver to be
effective has also been given and not revoked within such 90-day period.
(c) After an amendment or waiver becomes effective it
will bind every Holder of a Security of any series affected thereby, unless it
is of the type described in any of clauses (i) through (iv) of Section 13.02(d)
hereof. Any amendment or waiver will bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security that evidences the
same debt as the consenting Holder's Security.
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SECTION 13.05 NOTATION ON OR EXCHANGE OF SECURITIES
The Trustee may place an appropriate notation about an
amendment or waiver on any Security of any series affected thereby thereafter
authenticated. The Company in exchange for all Securities of such series may
issue and the Trustee will authenticate new Securities of such series that
reflect the amendment or waiver.
SECTION 13.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee will sign any amendment or supplemental indenture
authorized pursuant to this Article 13 if the amendment 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 will be entitled to receive
and, subject to Section 9.01 hereof, will 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 Company in accordance with its terms.
ARTICLE 14
MISCELLANEOUS
SECTION 14.01 TIA CONTROLS
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties will
control.
SECTION 14.02 NOTICES
(a) Any notice or communication by the Company or the
Trustee to the other is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the other's address:
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If to the Company:
U.S. Home Corporation
1800 West Loop South
Houston, Texas 77027
Telecopier No.: (713) 877-2387
Confirmation No.: (713) 877-2311
Attention: President
If to the Trustee:
IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
Telecopier No.: (212) 858-2952
Confirmation No.: (212) 858-2529
Attention: Corporate Trust Agency & Administration
(b) The Company or the Trustee, by notice to the other,
may designate additional or different addresses for subsequent notices or
communications.
(c) All notices and communications will 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, if mailed; when answered back,
if telexed; when receipt acknowledged by the Trustee's transmission result
report, if telecopied; and the next Business Day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day delivery.
(d) Any notice or communication to a Holder will be
mailed by first-class, postage-prepaid mail, return receipt requested, to the
Holder's address shown on the register kept by the Registrar. Failure to mail a
notice or communication to a Holder or any defect in it will not affect its
sufficiency with respect to other Holders.
(e) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given, whether or not the
addressee receives it.
(f) If the Company mails a notice or communication to
Holders, it will mail a copy to the Trustee and each Agent at the same time.
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SECTION 14.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Securities Register and anyone else
will have the protection of TIA Section 312(c).
SECTION 14.04 ACTION BY SECURITYHOLDERS
Whenever in this Indenture it is provided that the Holders of
a specified percentage in aggregate principal amount of the Outstanding
Securities may take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any other action),
the fact that at the time of taking any such action the Holders of such
specified percentage have joined therein may be evidenced by any instrument or
any number of instruments of similar tenor executed by (i) Holders in person or
(ii) agent or proxy appointed in writing, or by the record of the Holders in
favor thereof, at any meeting of Holders duly called and held in accordance with
the provisions of Article 15 hereof, or (iii) a combination of such instrument
or instruments of any such record of such meeting of Holders, but in each case
only to the extent that the Holders shall not have revoked such action pursuant
to Section 13.04 hereof.
Without limiting the generality of this Section 14.04, a
Holder, including a Depository that is a Holder of one or more Global
Securities, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken by Holders
and a Depository that is a Holder of one or more Global Securities may provide
its proxy or proxies to the beneficial owners of interests in any such Global
Securities through such Depository's standing instructions and customary
practices.
The Company, with advance approval by the Trustee, will fix a
record date for the purpose of determining the Persons who are beneficial owners
of interests in any Global Security held by a Depository entitled under the
procedures of such Depository to make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Indenture to be made, given or
taken by Holders. If such a record date is fixed, the Persons who are such
beneficial owners at the close of business on such record date or their duly
appointed proxy or proxies will be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other actions,
whether or not such Persons remain such beneficial owners after such record
date. No such request, demand, authorization, direction, notice, consent, waiver
or other action will be valid or effective if made, given or taken more than six
months after such record date.
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SECTION 14.05 PROOF OF EXECUTION OF INSTRUMENTS AND HOLDING OF SECURITIES
Proof of the execution of any instrument by a Holder or such
Holder's agent or proxy and proof of the holding by any Person of any of the
Securities shall be sufficient if made in the following manner:
(1) The fact and date of the execution by any
such Person of any instrument may be proved by the certificate
of any notary public or other officer of any jurisdiction
authorized to take acknowledgments of deeds to be recorded in
such jurisdiction that the Person executing such instrument
acknowledged to him the execution thereof, or by an affidavit
of a witness to such execution sworn to before any such notary
or other officer. Such certificate or affidavit shall also
constitute sufficient proof of the authority of the Person
executing any instrument in cases where Securities are not
held by Persons in their individual capacities.
(2) The fact and date of execution of any such
instrument may also be proved in any other manner which the
Trustee deems sufficient.
(3) The ownership of Securities shall be proved
by the Securities Register for such Security or by a
certificate of the Registrar.
(4) The Trustee shall not be bound to recognize
any Person as a Securityholder unless such Holder's title to
any Security held by such Holder is proved in the manner
provided in this Section 14.05.
The Trustee may require such additional proof of any matter
referred to in this Section 14.05 as it shall deem necessary.
SECTION 14.06 OBLIGATION TO DISCLOSE BENEFICIAL OWNERSHIP OF SECURITIES
All Securities shall be held and owned upon the express
condition that, upon demand of any regulatory agency having jurisdiction over
the Company, and pursuant to law or regulation empowering such agency to assert
such demand, any Holder shall disclose to such agency the identity of the
beneficial owner of all Securities held by such Holder.
SECTION 14.07 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company will furnish to the Trustee
and the Trustee may rely upon, as conclusive evidence:
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(i) an Officers' Certificate (which will include
the statements set forth in Section 14.08 hereof) stating
that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(ii) an Opinion of Counsel (which will include
the statements set forth in Section 14.08 hereof) stating
that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
SECTION 14.08 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
(a) Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture (other
than a certificate provided pursuant to TIA Section 314(a)(4)) will include:
(i) a statement that the Person making such
certificate or opinion has read such condition or covenant;
(ii) a brief statement as to the nature and scope
of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(iii) a statement that, in the opinion of such
Person, such Person has made such examination or investigation
as is necessary to enable him or her to express an informed
opinion as to whether or not such condition or covenant has
been complied with; and
(iv) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been
complied with.
(b) Any Officers' Certificate may be based, insofar as it
relates to legal matters, upon an Opinion of Counsel, unless such Officer knows
that the opinion with respect to the matters upon which his certificate may be
based as aforesaid is erroneous, or in the exercise of reasonable care should
know that the same are erroneous. Any Opinion of Counsel may be based, insofar
as it relates to factual matters, upon the certificate, statement or opinion of
or representations by an officer or officers of the Company, or other Persons or
firms deemed appropriate by such counsel, unless such counsel has actual
knowledge that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous.
(c) Any Officers' Certificate, statement or Opinion of
Counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representation by an
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<PAGE> 96
accountant (who may be an employee of the Company), or firm of accountants,
unless such Officer or counsel, as the case may be, has actual knowledge that
the certificate or opinion or representation with respect to the accounting
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous.
SECTION 14.09 RULES BY TRUSTEE AND AGENTS
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 14.10 NO RECOURSE AGAINST OTHERS
A director, officer or employee of the Company, as such, will
have no liability for any obligations of the Company under the Securities or
this Indenture. Each Holder by accepting a Security waives and releases all such
liability.
SECTION 14.11 GOVERNING LAW
This Indenture and the Securities will be governed by and
construed in accordance with the laws of the State of New York, without regard
to principles of conflicts of law.
SECTION 14.12 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary thereof. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
This writing constitutes the entire agreement of the parties with respect to the
subject matter hereof. Unless expressly otherwise indicated herein, an action or
transaction permitted by one provision hereof must nonetheless comply with all
other applicable provisions hereof; and any action or transaction not permitted
by any provision of this Indenture will not be permitted regardless of whether
any other provision hereof might permit such action or transaction.
SECTION 14.13 SUCCESSORS
All agreements of the Company in this Indenture and the
Securities will bind its successors. All agreements of the Trustee in this
Indenture will bind its successors.
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<PAGE> 97
SECTION 14.14 SEVERABILITY
In case any provision in this Indenture or in the Securities
is invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions will not in any way be affected or impaired thereby.
SECTION 14.15 COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture.
Each signed copy will be an original, but all of them together represent the
same agreement.
SECTION 14.16 TRUSTEE AS PAYING AGENT AND REGISTRAR
The Company initially appoints the Trustee as Paying Agent and
Registrar.
SECTION 14.17 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and will in no way
modify or restrict any of the terms or provisions hereof.
SECTION 14.18 BENEFITS OF INDENTURE
Nothing in this Indenture or in the Securities, express or
implied, will give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 14.19 ACCEPTANCE OF TRUST
IBJ Schroder Bank & Trust Company, the Trustee named herein,
hereby accepts the trusts in this Indenture declared and provided, upon the
terms and conditions hereinabove set forth.
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ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.01 PURPOSES OF MEETINGS
A meeting of Holders may be called at any time and from time
to time pursuant to the provisions of this Article 15 for any of the following
purposes:
(a) to give any notice to the Company or to the Trustee,
or to give any direction to the Trustee, or to waive any non-performance
hereunder, and its consequences, or to take any other action authorized to be
taken by Holders pursuant to any of the provisions of this Indenture;
(b) to remove the Trustee and appoint a successor Trustee
pursuant to the provisions of Section 9.08 hereof;
(c) to consent to the amendment of the provisions
contained herein and the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Article 13 hereof; or
(d) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate principal amount of the
Outstanding Securities under any other provision of this Indenture or under
applicable law.
SECTION 15.02 CALL OF MEETINGS BY TRUSTEE
The Trustee may at any time call a meeting of Holders to take
any action specified in Section 15.01, to be held at such time and at such place
in the State of New York, as the Trustee shall determine. Notice of each meeting
of the Holders of Securities, setting forth the time and the place of such
meeting and, in general terms, the action proposed to be taken at such meeting,
shall be mailed by the Trustee to the Holders, not less than 20 nor more than 60
days prior to the date fixed for the meeting, at their last addresses as they
shall appear on the Security Register.
SECTION 15.03 CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS
If at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 20 percent in aggregate principal amount of the
Outstanding Securities, shall have requested the Trustee to call a meeting of
Holders to take any action authorized in Section 15.01 hereof, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have mailed notice of such meeting within
20 days after receipt of such
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<PAGE> 99
request, then the Company or the Holders in the amount above specified may
determine the time and the place in the State of New York for such meeting, and
may call such meeting by mailing notice thereof as provided in Section 15.02.
SECTION 15.04 PERSON ENTITLED TO VOTE AT MEETING
To be entitled to vote at any meeting of Holders, a Person
shall be a Holder or be a Person appointed by an instrument in writing as proxy
by a Holder. The only Persons who shall be entitled to be present or speak at
any meeting of the Holders shall be the Persons entitled to vote at such meeting
and their counsel and any representatives of the Company and its counsel.
SECTION 15.05 REGULATIONS FOR MEETING
Notwithstanding any provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders in regard to the appointment of proxies, the proof of the holding of
Securities, the appointment and duties of inspectors of votes, the submission
and examination of proxies and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall think fit.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 14.05 hereof
and the appointment of any proxy shall be proved in the manner specified in such
Section 14.05 or by having the signature of the person executing the proxy
witnessed or guaranteed by any bank, banker, trust company or New York Stock
Exchange, Inc. member firm satisfactory to the Trustee.
The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by the Holders as provided in Section 15.03, in which case the
Company or the Holders calling the meeting, as the case may be, shall appoint a
temporary chairman. A permanent chairperson and a permanent secretary of the
meeting shall be elected by vote of the Holders of a majority in principal
amount of the Securities represented at the meeting and entitled to vote.
At any meeting of Holders, the presence of Persons holding or
representing Securities in an aggregate principal amount sufficient to take
action upon the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum; but, if less than a quorum be
present, the Persons holding or representing a majority in aggregate principal
amount of the Securities represented at the meeting may adjourn such meeting
with the same effect, for all intents and purposes, as though a quorum had been
present.
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<PAGE> 100
IN WITNESS WHEREOF, the undersigned have duly executed this
Indenture as of the date first above written.
U.S. HOME CORPORATION
By: _______________________________
Thomas A. Napoli
Vice President - Finance and
Chief Financial Officer
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By: ______________________________
Name:
Title:
90
<PAGE> 1
EXHIBIT 4.2
U.S. HOME CORPORATION
OFFICERS' CERTIFICATE
Pursuant to Sections 2.01 and 3.01 of the Indenture, dated as
of February __, 1996 (the "Indenture"), between U.S. Home Corporation, a
Delaware corporation (the "Company"), and IBJ Schroder Bank & Trust Company, as
Trustee (the "Trustee"), each of the undersigned, Isaac Heimbinder and Thomas A.
Napoli, the President, Co-Chief Executive Officer and Chief Operating Officer
and Vice President-Finance and Chief Financial Officer of the Company,
respectively, hereby certify on behalf of the Company as follows:
1. Capitalized terms used but not defined herein have
the meanings set forth in the Indenture.
2. The establishment of __% Senior Notes due 2001 as a
series of Securities of the Company (the "Senior Notes") has been
approved and authorized in accordance with the provisions of the
Indenture pursuant to resolutions of the Board of Directors of the
Company (a copy of which, certified by an Assistant Secretary or the
Secretary of the Company, is delivered herewith) duly adopted on
December 7-8, 1995, resolutions of the Finance Committee of the Board
of Directors of the Company (a copy of which, certified by the
Assistant Secretary or the Secretary of the Company, is delivered
herewith) duly adopted on February 9, 1996, and resolutions of the
Pricing Committee of the Board of Directors of the Company (a copy of
which, certified by the Assistant Secretary or the Secretary of the
Company, is delivered herewith) duly adopted on February __, 1996.
Pursuant to such resolutions and this Officers' Certificate, the terms
set forth below for the Senior Notes to be issued under the Indenture
are authorized and approved. The form of Senior Note attached hereto as
Exhibit A has been approved and authorized in accordance with the
provisions of the Indenture.
<PAGE> 2
3. That he has read and is familiar with the provisions
of Articles 2 and 3 of the Indenture relating to the establishment of a
series of Securities thereunder and the establishment of forms of
Securities representing a series of Securities thereunder and, in each
case, the definitions therein relating thereto; that he is generally
familiar with the other provisions of the Indenture and with the
affairs of the Company and its acts and proceedings and that the
statements and opinions made by him in this Officers' Certificate are
based upon such familiarity; and that, in his opinion, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not the conditions and
covenants referred to above have been complied with; and in his
opinion, such conditions and covenants have been complied with.
4. The terms of the series of Securities established
pursuant to this Officers' Certificate shall be as follows:
(a) TITLE. The title of the series of Securities
established hereby is the "___% Senior Notes due 2001."
(b) AGGREGATE PRINCIPAL AMOUNT. The limit upon
the aggregate principal amount of the Senior Notes which may
be authenticated and delivered under the Indenture (except for
Senior Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Senior
Notes pursuant to Section 3.04, 3.05, 3.06 or 13.05 of the
Indenture and except for any Senior Notes which, pursuant to
Section 3.03 of the Indenture, are deemed never to have been
authorized and delivered thereunder) is $75,000,000.
(c) PERSONS TO WHOM INTEREST PAYABLE. Interest
on the Senior Notes shall be payable to the Person in whose
name a Senior Note is registered at the close of business
(whether or not a Business Day) on the Regular Record
2
<PAGE> 3
Date, for such interest payment, except that default interest
shall be payable in the manner provided in Section 3.07 of the
Indenture.
(d) STATED MATURITY. The date on which the
principal of the Senior Notes shall be payable, unless
accelerated pursuant to the Indenture, is March 1, 2001.
(e) RATE OF INTEREST; INTEREST PAYMENT DATES;
REGULAR RECORD DATES.
(i) RATE OF INTEREST. The principal
amount of each of the Senior Notes shall bear simple
interest at the rate of ___% per annum. The date from
which interest shall accrue for each of the Senior
Notes shall be February __, 1996. Interest shall be
calculated on the basis of actual days elapsed over a
365 or 366-day year.
(ii) INTEREST PAYMENT DATES. Interest on
the Senior Notes shall be payable semi-annually on
March 1 and September 1 of each year, commencing on
September 1, 1996.
If any Interest Payment Date or the Maturity
of the Senior Notes falls on a day that is not a
Business Day, the payment due on such Interest
Payment Date or at Maturity will be made on the
following day that is a Business Day as if it were
made on the date such payment was due and no interest
shall accrue on the amount so payable for the period
from and after such Interest Payment Date or
Maturity, as the case may be.
3
<PAGE> 4
(iii) REGULAR RECORD DATES. The Regular
Record Dates for interest payable on each March 1,
and September 1 will be the immediately preceding
February 15 and August 15 (whether or not a Business
Day), respectively.
(f) PLACE OF PAYMENT; REGISTRATION OF TRANSFER
AND EXCHANGE; NOTICES TO THE COMPANY.
(i) PLACE OF PAYMENT. Payment of the
principal of and interest on the Senior Notes will be
made at the Corporate Trust Office of the Trustee in
New York, New York, and at any other office or agency
designated by the Company for such purpose; provided,
however, that at the option of the Company, payment
of interest due (other than at Maturity) may be made
by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security
Register.
(ii) REGISTRATION OF EXCHANGE AND
TRANSFER. The Senior Notes may be presented for
exchange and registration of transfer at the
Corporate Trust Office of the Trustee in New York,
New York, or at the office of any Registrar
hereafter designated by the Company for such purpose.
(iii) NOTICES TO COMPANY. Notices and
demands to or upon the Company in respect to the
Senior Notes and the Indenture may be served at U.S.
Home Corporation, 1800 West Loop South, Houston,
Texas 77027, Attention: President.
4
<PAGE> 5
(g) OPTIONAL REDEMPTION. The Senior
Notes are not redeemable at the option of the
Company prior to Maturity.
(h) MANDATORY REDEMPTION/SINKING FUND. The
Company shall not be obligated to make any mandatory
redemption on sinking fund payments or repurchase the Senior
Notes at the option of the Holders.
(i) DENOMINATIONS. The Senior Notes shall be
issuable in denominations of $1,000 and any integral multiple
thereof.
(j) ACCELERATION. The principal amount of the
Senior Notes shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 8.02(b) of the
Indenture.
(k) DEFEASANCE. The Senior Notes shall be
defeasible as provided in Article 11 of the Indenture.
(l) GLOBAL SECURITIES; DEPOSITORY. The Senior
Notes shall be issued in the form of one or more Global
Securities and the Depository for the Global Securities shall
be The Depository Trust Company, a New York corporation, and
the Global Securities shall be registered in the name of Cede
& Co., the nominee of the Depository.
(m) REGISTRAR; PAYING AGENT. The Company hereby
appoints the Trustee as the initial Registrar and Paying Agent
with respect to the Senior Notes. The books of the Registrar
for the Senior Notes will be initially maintained at the
Corporate Trust Office of the Trustee.
(n) EVENTS OF DEFAULT. Section 8.01(a)(iii) of
the Indenture shall not be applicable to the Senior Notes.
5
<PAGE> 6
IN WITNESS WHEREOF, we have executed this Officers'
Certificate on behalf of the Company this __ day of February, 1996.
U.S. HOME CORPORATION
By: __________________________________
Isaac Heimbinder
President, Co-Chief Executive
Officer and Chief Operating
Officer
By: __________________________________
Thomas A. Napoli
Vice President-Finance and
Chief Financial Officer
6
<PAGE> 7
EXHIBIT A
(FACE OF SECURITY)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE OF A DEPOSITORY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY
OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH
LIMITED CIRCUMSTANCES. EVERY SECURITY DELIVERED UPON REGISTRATION OF
TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS GLOBAL SECURITY
SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED ABOVE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS TO BE 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.
No.______ U.S. HOME CORPORATION $_______
Promises to pay to _______________________________________ or registered assigns
the principal sum of _____________________ Dollars on March 1, 2001.
Exhibit A-1
<PAGE> 8
___% SENIOR NOTE DUE 2001
Interest Payment Dates: March 1 and September 1
Regular Record Dates: February 15 and August 15
Dated: February __, 1996
U.S. HOME CORPORATION
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
[Corporate Seal]
This Security is one of the
Securities of the series designated
herein referred to in the within
mentioned Indenture.
IBJ SCHRODER BANK &
TRUST COMPANY, as Trustee
By:________________________
Authorized Officer
Exhibit A-2
<PAGE> 9
(REVERSE OF SECURITY)
U.S. HOME CORPORATION
__% SENIOR NOTE DUE 2001
1. INTEREST.
U.S. Home Corporation, a Delaware corporation (the "Company"), promises
to pay interest on the principal amount of this Security, which is one of the
Securities of the series designated under the Indenture as the "__% Senior Notes
due 2001" (the "Senior Notes"), at the rate per annum shown above. The Company
will pay interest semiannually on March 1 and September 1 of each year (each an
"Interest Payment Date"), commencing September 1, 1996. Interest on the Senior
Notes will accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from February __, 1996. Interest will be computed
on the basis of actual days elapsed over a 365 or 366-day year.
2. METHOD OF PAYMENT.
The Company will pay interest on the Senior Notes (except default
interest, which shall be payable in the manner provided in Section 3.07 of the
Indenture) to the Persons who are Holders of Securities at the close of business
on the February 15 or August 15 next preceding the Interest Payment Date (the
"Regular Record Date"). Holders must surrender Senior Notes to a Paying Agent to
collect principal payments. The Company 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. However, the Company may pay principal and interest by
its check payable in such money. It may mail an interest check to a Holder's
address set forth on the Security Register.
3. PAYING AGENT AND REGISTRAR.
Initially, IBJ Schroder Bank & Trust Company (the "Trustee") will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to any Holder. The Company or any of
its Subsidiaries may act as Paying Agent, Registrar or co-Registrar.
Exhibit A-3
<PAGE> 10
4. INDENTURE.
The Company issued the Senior Notes under an Indenture, dated as of
February __, 1996 (the "Indenture"), between the Company and the Trustee. The
terms of the Senior Notes include those stated in the Indenture, those made part
of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
sections 77aaa-77bbbb) (the "TIA") as in effect on the date of the Indenture and
as may be amended from time to time, and those incorporated by reference into
the Indenture pursuant to an Officers' Certificate of the Company, dated
February __, 1996 (the "Officers' Certificate") delivered pursuant to Sections
2.01 and 3.01 of the Indenture. The Senior Notes are subject to and governed by
all such terms, and Holders are referred to the Indenture, the Officers'
Certificate and the TIA for a statement of them. Capitalized terms used in
this Senior Note and not otherwise defined herein shall have the meanings set
forth in the Indenture and the Officers' Certificate. The Senior Notes are
general unsecured obligations of the Company limited to the aggregate principal
amount of $75,000,000.
5. OPTIONAL REDEMPTION.
The Senior Notes are not redeemable at the option of the Company prior
to Maturity.
6. MANDATORY REDEMPTION/SINKING FUND.
The Company shall not be obligated to make any mandatory redemption or
sinking fund payments or repurchase the Senior Notes at the option of the
Holders.
7. MANDATORY REPURCHASE OBLIGATION.
Within 30 days after the occurrence of any Change of Control, the
Company will offer to purchase all Outstanding Senior Notes at a purchase price
equal to 101 percent of the aggregate principal amount thereof, plus accrued
and unpaid interest to the Change of Control Payment Date.
Within 30 days after the date on which the aggregate amount of Excess
Proceeds (from an Asset Sale) equals at any time and from time to time
$5,000,000 or more, the Company will offer to purchase the maximum principal
amount of Senior Notes that may be
Exhibit A-4
<PAGE> 11
purchased out of the Excess Proceeds at a purchase price equal to 100 percent of
the principal amount thereof, plus accrued and unpaid interest to the Asset
Sale Offer Date.
Within 30 days after the end of any two consecutive fiscal quarters
during which the Consolidated Tangible Net Worth of the Company is at any time
and from time to time less than $115,000,000, the Company will offer to purchase
10 percent of the original Outstanding principal amount of the Senior Notes at a
purchase price equal to 100 percent of the original principal amount thereof,
plus accrued and unpaid interest to the Net Worth Offer Date.
A Change of Control Offer, an Excess Proceeds Offer or a Net Worth
Offer will remain open for the period specified in the Indenture. Promptly after
the termination of a Change of Control Offer, an Excess Proceeds Offer or a Net
Worth Offer, subject to the terms of the Indenture, the Company will purchase
and mail or deliver payment for all Senior Notes tendered and accepted pursuant
to such Offer.
A Holder may tender in response to a Change of Control Offer, an Excess
Proceeds Offer or a Net Worth Offer all or any portion of its Senior Notes at
its discretion by completing the form entitled "OPTION OF HOLDER TO ELECT
PURCHASE" appearing on the reverse of this Senior Note. Any portion of Senior
Notes tendered must be an integral multiple of $1,000.
8. DENOMINATIONS, TRANSFER, EXCHANGE.
The Senior Notes are issuable in registered form, without coupons, in
denominations of $1,000 and any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, Senior Notes are exchangeable for a like
aggregate principal amount of Senior Notes of any authorized denomination, as
requested by the Holder surrendering the same, upon surrender of the Senior Note
or Senior Notes to be exchanged at any office or agency where Senior Notes may
be presented for registration of transfer.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of Senior Notes is registrable in the Security Register
upon surrender of a Senior
Exhibit A-5
<PAGE> 12
Note for registration of transfer at the Corporate Trust Office of the Trustee
in New York, or at the office of any Registrar hereafter designated by the
Company for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar
duly executed by the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Senior Notes, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
No service charge shall be made by the Company, the Trustee or the
Registrar for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax, assessment or other
governmental charge payable in connection therewith (other than exchanges
pursuant to Section 3.04 or 13.05 of the Indenture, not involving any transfer).
9. PERSON DEEMED OWNER.
The Holder of a Senior Note may be treated as the owner of it for all
purposes.
10. AMENDMENT, WAIVER.
The Indenture permits, in certain circumstances therein specified, the
amendment thereof without the consent of the Holders. The Indenture also
permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations under the Indenture of the
Company and the rights of Holders at any time by the Company and the Trustee
with the consent of the Holders of a majority in aggregate principal amount of
the Senior Notes at the time Outstanding. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the Senior
Notes at the time Outstanding, on behalf of the Holders of all the Senior Notes,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holders shall be conclusive and binding upon the Holder
of this Senior Note and upon all future Holders of this Senior Note and of any
Senior Note issued upon the registration of transfer
Exhibit A-6
<PAGE> 13
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Senior Note.
11. SUCCESSOR CORPORATION.
When a successor corporation assumes all the obligations of its
predecessor under the Senior Notes and the Indenture, the predecessor
corporation will be released from those obligations.
12. DEFAULTS AND REMEDIES.
The following are Events of Default: (i) failure by the Company to pay
interest on any Senior Note when the same becomes due and the continuance of
such failure for 30 days; (ii) failure by the Company to pay the principal of
any Senior Note when the same becomes due and payable at Maturity, upon
acceleration or otherwise (including the failure to make payment pursuant to a
Change of Control Offer, an Excess Proceeds Offer or a Net Worth Offer); (iii)
failure by the Company to comply with any of its agreements or covenants in, or
provisions of, the Senior Notes, the Officers' Certificate or the Indenture and
such failure continues for 60 days after notice; (iv) acceleration of any
Indebtedness (other than Non-Recourse Indebtedness) of the Company or any of its
Subsidiaries that has an outstanding principal amount of $5,000,000 or more in
the aggregate; provided that, in the event any such acceleration is withdrawn or
otherwise rescinded within a period of five days after such acceleration by the
holders of such Indebtedness, any Event of Default pursuant to this clause (iv)
will be deemed to be cured and any acceleration under the Indenture will be
deemed withdrawn or rescinded; (v) failure by the Company or any of its
Subsidiaries to make any principal or interest payment in respect of
Indebtedness (other than Non-Recourse Indebtedness) of the Company or any of its
Subsidiaries with an outstanding aggregate amount of $5,000,000 or more within
five days of such principal or interest payment becoming due and payable (after
giving effect to any applicable grace period set forth in the documents
governing such Indebtedness); (vi) a final judgment or judgments that exceed
$5,000,000 or more in the aggregate, for the payment of money, having been
entered by a court or courts of competent jurisdiction against the Company or
any of its Subsidiaries and such judgment or judgments is not satisfied, stayed,
annulled or rescinded within 60 days of being entered; or (vii) certain
Exhibit A-7
<PAGE> 14
events of bankruptcy, insolvency or reorganization, involving the Company or a
Material Subsidiary.
If an Event of Default with respect to the Senior Notes at the time
Outstanding (other than certain Events of Default arising out of certain events
of bankruptcy, insolvency or reorganization involving the Company or a Material
Subsidiary) occurs and is continuing, the Trustee (after receiving indemnities
from the Holders to its satisfaction) by notice to the Company, or the Holders
of at least 25 percent in aggregate principal amount of the Outstanding Senior
Notes by notice to the Company and the Trustee, may declare all Outstanding
Senior Notes to be due and payable immediately. Upon such declaration, the
amounts due and payable on the Senior Notes as determined in Section 8.02(b) of
the Indenture, will be due and payable immediately. If an Event of Default
arising out of certain events of bankruptcy, insolvency or reorganization
involving the Company or a Material Subsidiary occurs, such an amount will ipso
facto become and be immediately due and payable without any declaration, notice
or other act on the part of the Trustee and the Company or any Holder. The
Holders of a majority in aggregate principal amount of the Outstanding Senior
Notes by written notice to the Trustee and the Company may waive such Event of
Default, rescind an acceleration and its consequences (except an acceleration
due to nonpayment of principal or interest on the Senior Notes) if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived.
Subject to Sections 8.07 and 13.02 of the Indenture, the Holders of a
majority in aggregate principal amount of the Outstanding Senior Notes by notice
to the Trustee may waive an existing Default or Event of Default and its
consequences (including waivers obtained in connection with a tender offer or
exchange offer for Senior Notes), except a continuing Default or Event of
Default in the payment of the principal of or interest on any Senior Note. Upon
any such waiver, such Default will cease to exist, and any Event of Default
arising therefrom will be deemed to have been cured for every purpose of the
Indenture and the Senior Notes, but no such waiver will extend to any subsequent
or other Default or Event of Default or impair any right consequent thereon.
Exhibit A-8
<PAGE> 15
13. TRUSTEE DEALINGS WITH COMPANY.
IBJ Schroder Bank & Trust Company, the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee. Any Agent may do the same with
like rights. However, the Trustee is subject to Sections 9.10 and 9.11 of the
Indenture.
14. NO RECOURSE AGAINST OTHERS.
A director, officer or employee of the Company, as such, shall have no
liability for any obligations of the Company under the Senior Notes or the
Indenture. Each Holder and each other owner of any beneficial interest in a
Senior Note, by accepting a Senior Note waives and releases all such liability.
15. AUTHENTICATION.
This Senior Note shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Senior Note.
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).
The Company will furnish to any Holder, upon written request and
without charge, a copy of the Indenture. Request may be made to:
U.S. Home Corporation
1800 West Loop South
Houston, Texas 77027
Attention: President
Exhibit A-9
<PAGE> 16
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
Please insert Social Security or Employer
Identification Number of Assignee
- -------------------------------------------
- -
- -------------------------------------------
__________________________________________________________________________
Please Print or Typewrite Name and Address
including Postal Zip Code of Assignee
__________________________________________________________________________
the within Senior Note and all rights thereunder, hereby irrevocably
constituting and appointing
_________________________________________________________________ attorney to
Transfer said Senior Note on the books of the Company, with full power of
substitution in the premises.
Dated: ___________________________ Signature ________________________
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within note in every particular, without
alteration or enlargement or any change whatever.
Exhibit A-10
<PAGE> 17
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Note purchased by the
Company pursuant to Section 6.11, 6.16 or 6.20 of the Indenture, check the box
below:
/ / Section 6.11 (Excess Proceeds Offer)
/ / Section 6.16 (Change of Control Offer)
/ / Section 6.20 (Net Worth Offer)
If you want to elect to have only part of the Senior Note
purchased by the Company pursuant to Section 6.11, 6.16 or 6.20 of the
Indenture, as applicable, state the principal amount you elect to have
purchased: $_________. Note: The amount you elect to have purchased must be an
integral multiple of $1,000.
Date:_______________ Your signature:__________________________________
(Sign exactly as your name appears
on the Senior Note)
Signature Guarantee:_________________________________
Exhibit A-11
<PAGE> 1
EXHIBIT 10
CONSENT AND FIRST AMENDMENT TO CREDIT AGREEMENT
CONSENT AND FIRST AMENDMENT TO CREDIT AGREEMENT ("First
Amendment"), dated as of February 9, 1996, among U.S. HOME CORPORATION, a
Delaware corporation (the "Borrower"), the Lenders (the "Lenders") listed on the
signature pages of the Credit Agreement, dated as of September 29, 1995, among
the Borrower, such Lenders and THE FIRST NATIONAL BANK OF CHICAGO, as Agent (the
"Agent") (the "Credit Agreement"), and the Agent.
R E C I T A L S:
A. The Borrower, the Lenders and the Agent have
previously entered into the Credit Agreement.
B. The parties hereto desire to amend the Credit
Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto, intending to be legally
bound, agree as follows:
1. DEFINITIONS
In addition to the terms defined herein, capitalized terms
used in this First Amendment shall have the respective meanings ascribed thereto
in the Credit Agreement.
2. CONSENT TO THE SENIOR DEBT SECURITY OFFERING
The Required Lenders hereby consent to the Borrower's
incurrence of Indebtedness in connection with the offer and sale by the Borrower
of not greater than $75,000,000 principal amount of senior, unsecured debt
securities maturing no earlier than
1
<PAGE> 2
February 1, 2001, issued under the Borrower's Registration Statement on Form S-3
(the "Registration Statement"), as it may be amended or supplemented, filed on
January 31, 1996 with the Securities and Exchange Commission pursuant to Rule
415 promulgated under the Securities Act of 1933, as amended, and to the
consummation of the transactions contemplated thereby.
3. FIRST AMENDMENT TO CREDIT AGREEMENT
The Credit Agreement is, effective as of the date hereof,
hereby amended as follows:
3.1. Article I of the Credit Agreement is amended
by amending and restating or adding, as the case may be, the definitions set
forth below:
"'Refinancing Indebtedness' means Indebtedness that
refunds, refinances or extends any Indebtedness
described in Schedule "8.2" hereto or the
Indebtedness represented by the Senior Debt
Securities (or that refunds, refinances or extends
any refund, refinancing or extension of such
Indebtedness), but only to the extent that (i) the
Refinancing Indebtedness is subordinated to or pari
passu with the Obligations to the same extent as the
Indebtedness being refunded, refinanced or extended,
if at all, (ii) the Refinancing Indebtedness is
scheduled to mature no earlier than the then current
maturity date of such Indebtedness, (iii) such
Refinancing Indebtedness is in an aggregate amount
that is equal to or less than the sum of the
aggregate amount then outstanding under the
Indebtedness being refunded, refinanced or extended,
(iv) the Person or Persons (or Persons who are
Subsidiaries of such Persons or of which such Persons
are Subsidiaries) liable for the payment of such
Refinancing Indebtedness are the same Persons that
were liable for the Indebtedness being refunded,
refinanced or extended when such Indebtedness was
initially incurred and (v) such Refinancing
Indebtedness is incurred within 120 days after the
Indebtedness being refunded, refinanced or extended
is so refunded, refinanced or extended."
"'Senior Debt Securities' shall mean senior,
unsecured debt securities of the Borrower in the
principal amount of not greater
2
<PAGE> 3
than $75,000,000 maturing no earlier than February 1,
2001, issued under the Borrower's Registration
Statement on Form S-3, as it may be amended or
supplemented, filed on January 31, 1996 with the
Securities and Exchange Commission."
"'Senior Debt' means the Senior Notes and the Senior
Debt Securities, or if either the Senior Notes or
Senior Debt Securities are refinanced, the
Refinancing Indebtedness with respect thereto."
3.2. Section 8.2 of the Credit Agreement is
hereby amended by inserting the following clause (xiii) at the end thereof, to
read as follows:
"(xiii) Indebtedness represented by the Senior Debt
Securities."
3.3. Section 8.12 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
"8.12 Amendments. The Borrower will not (i) amend or
modify the (a) Indenture or the Senior Notes or (b)
indenture relating to the Senior Debt Securities or
the Senior Debt Securities after the date of issuance
of the Senior Debt Securities, except for amendments
or modifications that do not (1) with respect to the
Indenture or the Senior Notes, impose upon the
Borrower obligations not contained therein as of the
date of this Agreement, (2) with respect to the
indenture relating to the Senior Debt Securities or
the Senior Debt Securities, impose upon the Borrower
obligations not contained therein as of the date of
issuance of the Senior Debt Securities, (3)
accelerate any of the tax obligations of the Borrower
or (4) otherwise adversely affect the Borrower or
(ii) permit any Guarantor to amend or modify the
Contribution Agreement, except as provided in Section
7.11."
3
<PAGE> 4
4. MISCELLANEOUS
4.1. This First Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this First Amendment by
signing any such counterpart.
4.2. In all respects, including all matters of
construction, validity and performance, this First Amendment shall be construed
in accordance with the internal laws (and not the laws of conflicts) of the
State of Illinois, but giving effect to federal laws applicable to national
banks.
IN WITNESS WHEREOF, this First Amendment has been duly
executed as of the date first above written.
U.S. HOME CORPORATION
By: /s/ Thomas A. Napoli
__________________________________
Thomas A. Napoli
Vice President - Finance and Chief
Financial Officer
LENDERS:
THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By: /s/ Howard M. Feldman
__________________________________
Howard M. Feldman
Vice President
4
<PAGE> 5
GUARANTY FEDERAL BANK, F.S.B.
By: /s/ Robert W. Talkington
__________________________________
Robert W. Talkington
Senior Vice President
CREDIT LYONNAIS
By: __________________________________
Name:
Title:
BANK ONE, ARIZONA, NA
By: /s/ Rhonda R. Williams
__________________________________
Rhonda R. Williams
Assistant Vice President
COMERICA BANK, a Michigan corporation
By: /s/ David J. Campbell
__________________________________
David J. Campbell
Vice President
5
<PAGE> 1
EXHIBIT 12
U.S. HOME CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
FOR THE FIVE YEARS ENDED DECEMBER 31, 1995
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------------
1991 1992 1993 1994 1995
-------- ------- -------- ------- -------
<S> <C> <C> <C> <C> <C>
COMPUTATION OF HISTORICAL RATIOS:
EARNINGS -
Net Income (Loss) From Continuing
Operations $(4,832) $29,349 $ 78,606 $32,829 $36,920
Add:
Provision (Benefit) For Income
Taxes of U.S. Home Corporation -- -- (33,966) 19,697 22,152
Fixed charges of U.S. Home
Corporation:
Interest expense, net 8,811 2,483 1,453 537 692
Previously capitalized interest
charged to cost of sales 24,734 23,338 22,342 28,871 27,555
Portion of rent expense
representative of the
interest factor 1,371 1,381 1,562 1,820 1,833
Fixed charges of joint ventures
(principally interest) 473 355 97 183 238
------- ------- ------- ------- -------
EARNINGS AS ADJUSTED $30,557 $56,906 $70,094 $83,937 $89,390
======= ======= ======= ======= =======
FIXED CHARGES, AS ADJUSTED OF
U.S. HOME CORPORATION:
Total Interest Paid or Accrued $30,548 $15,693 $23,373 $31,357 $32,687
Portion of Rent Expense As Above 1,371 1,381 1,562 1,820 1,833
Fixed charges of Joint Ventures 588 376 239 227 269
------- ------- ------- ------- -------
$32,507 $17,450 $25,174 $33,404 $34,789
======= ======= ======= ======= =======
RATIO OF EARNINGS TO FIXED CHARGES --(1) 3.26 2.78 2.51 2.57
</TABLE>
- ---------------
(1) Earnings were insufficient to cover fixed charges for the year ended
December 31, 1991 by approximately $2 million.
